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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or (b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a party, which failure continues unremedied for a period of ten days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or (c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or (d) the Servicer shall become subject to an Insolvency Event; or (e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or (f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or (g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or (h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or (i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice: (1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee; (2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee; (3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Ag Services of America Inc)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall ---------------- occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information deposit or credit to the Trustee Collection Account any amount required pursuant to Section 3.04(g)(vi) on or before the date such information is required under this Agreement to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee so deposited or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partycredited, which failure continues unremedied for a period of ten days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given given;
(c) failure on the part of the Seller or the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given
(A) to the Seller or the Servicer, as the case may be, by the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(e) the commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or;
(ch) any representation, warranty or certification made by statement of the Servicer or the Seller made in this Indenture Agreement or the other Basic Documents or any certificate, report or other Transaction Document to which it is a party or in any certificate writing delivered pursuant to this Indenture hereto or any other Transaction Document to which it is a party thereto shall prove to have been be incorrect in any material respect as of the time when made; or
the same shall have been made (d) excluding, however, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall become subject to an Insolvency Event; or
(e) be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a final judgment is rendered against material adverse effect on the Originator while acting as Servicer in an amount greater than $1,000,000 Noteholders or the Insurer and, within 30 days after entry thereof, such judgment is not discharged or execution written notice thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) shall have been given to the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which Seller by the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Indenture Trustee or the Insurer (A) shall receive notice from Issuer or by Noteholders, acting together as a single Class, evidencing in the Servicer that aggregate not less than 25% of the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that Outstanding Principal Amount of the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operationsNotes, or financial conditionso long as no Insurer Default has occurred, (2) has defaulted on any by the Insurer, the circumstance or condition in respect of its material obligations (other than those included in this Indenture)which such representation, warranty or (3) has ceased to conduct its business in the ordinary course; orstatement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to comply have a valid perfected first priority security interest in any material respect with Contracts pledged by the Credit and Collection Policy in Issuer to the performance Indenture Trustee the outstanding aggregate Principal Balance of its duties hereunder; Following which exceeds 5.00% of the occurrence of a Servicer DefaultPool Balance;
(k) unless authorized under Section 5.02, the Control Party may among other things, declare Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of DefaultDefault as defined in the Insurance Agreement; then and in each and every case, deliver so long as such Servicer Default shall not have been remedied, (i) if no Insurer Default has occurred and is continuing, the Insurer or (ii) if an Insurer Default has occurred and is continuing, the Indenture Trustee acting at the direction of the Noteholders evidencing not less than 25% of the outstanding amount of the Notes, acting together as a Termination Notice single Class, by notice then given in writing to the Servicer (and effect a Service Transfer. The Control Party may waive any default to the Insurer, the Indenture Trustee and the Issuer if given by the Issuer or Noteholders) may terminate all the rights and obligations of the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any NoteAgreement. Upon any such waiver termination, termination of a past defaultthe Servicer as custodian, such default shall cease if the Servicer is acting as such, can be made pursuant to exist, and any such default shall be deemed to have been remedied for every purpose of this IndentureSection 2.08. No such waiver shall extend to any subsequent On or other default or impair any right consequent thereon except to after the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02such written notice of termination, all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes, the Contracts 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 Issuer are hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in 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 Contracts and related documents, or otherwise. The Servicer agrees to cooperate, at its expense, shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in (i) effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountin, or which shall have been deposited by the Servicer to in, the Collection Account, Account or any other account, or which (ii) shall thereafter be received by it with respect to the Acquired Advances, and (ii) assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer until all servicing activities have been transferred associated with its transition to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the role of Successor Servicer (whether due to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shalltermination, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discsresignation or otherwise), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or Agreement; provided, however, that any such failure caused by a non- willful act of the other Transaction Documents to which it is Servicer shall not constitute a party; orServicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Noteholder Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or any other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any Affiliate bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, the Excess Funding Account, the Interest Funding Account or the Principal Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Receivables. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior or electronic copies thereof relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, within five Business Days of such Service Transferall reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, (A) assemble such documents, instruments correspondence and other records (including computer tapes and discs), which evidence documents with respect to the Acquired Advances Receivables and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, andany Enhancement Provider, promptly upon receipt, remit all such cash, checks the Transferor and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeHolders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fingerhut Companies Inc)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Deal Agent as required by this Agreement, or to deliver any required Monthly Report or other Required Reports hereunder on or before the date occurring three Business Days after the date such payment, transfer transfer, deposit, instruction or deposit notice or report is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any of Agreement which has a material adverse effect on the other Transaction Documents to which it is a partyPurchasers, which failure continues unremedied for a period of ten 30 days after the first to occur of (i) the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer Deal Agent and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent date on which the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orbecomes aware thereof;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect in any material respect when made; or, which has a material adverse effect on the Purchasers and which continues to be unremedied for a period of 30 days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Deal Agent and (ii) the date on which the Servicer becomes aware thereof;
(d) the Servicer shall become subject to an Insolvency Event; orEvent shall occur with respect to the Servicer;
(e) a final judgment is rendered against an Insolvency Event shall occur with respect to the Originator while acting as Subservicer and the Seller fails to replace the Subservicer with the Backup Servicer in an amount greater than $1,000,000 and, or other acceptable party within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; ordays;
(f) the Servicer or any Affiliate material delegation of the Servicer shall fail to pay any principal of Servicer's or premium or interest on any Debt for Subservicer's duties which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether not permitted by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; orSection 7.1;
(g) if any financial or Asset information reasonably requested by the Servicer Deal Agent or the Purchaser as provided herein is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); ornot reasonably provided as requested;
(h) the Trustee or the Insurer (A) shall receive notice from rendering against the Servicer that of a final judgment, decree or order for the Servicer is no longer able to discharge its duties under this Indenture payment of money in excess of U.S. $1,000,000 and the continuance of such judgment, decree or (B) shall determine, order unsatisfied and in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced effect for any period of 61 consecutive days without a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any stay of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; orexecution;
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure of the Servicer to cooperatemake any payment due with respect to aggregate recourse debt or other obligations with an aggregate principal amount exceeding U.S. $1,000,000 or the occurrence of any event or condition which would permit acceleration of such recourse debt or other obligations if such event or condition has not been waived;
(j) to execute and deliver, on behalf of any change in the Servicer, as attorney-in fact or otherwise, all documents and other instruments upon the failure management of the Servicer relating to execute or deliver such documents or instrumentsthe positions of President, 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 cooperateCEO, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination Chairman of the responsibilities Board and rights Executive Vice President; or
(k) any change in the control of the Servicer to conduct servicing hereunderwhich takes the form of either a merger or consolidation in which the Servicer is not the surviving entity, includingthen, without limitationso long as such Servicer Default shall not have been remedied, the transfer Deal Agent, by written notice to such Successor the Servicer (a "Termination Notice"), may terminate all of all authority the rights and obligations of the Servicer to service the Acquired Advances as provided Servicer under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesAgreement.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Bankvest Capital Corp)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information give advice or notice to the Trustee required receivables trustee pursuant to Section 3.04(g)(vi) on an agreed schedule of collections and distributions or before to advise the receivables trustee to make any required drawing, withdrawal or payment pursuant to this Deed or any other Transaction Document; these events will be considered failures if they do not happen within 5 Business Days after the date such information is required that they were supposed to be given happen under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee Deed or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orDocument;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Deed or any Transaction Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Investor Beneficiaries of any Outstanding Issuance and which it is a partyfailure, which failure if capable of remedy, continues unremedied for a period of ten 60 days (except in relation to a failure of the Servicer to give advice or notice to the Receivables Trustee pursuant to an agreed schedule of collections and allocations or to advise the Receivables Trustee to make any required drawing, withdrawal or payment pursuant to the Transaction Documents which shall be 5 Business Days) or more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Investor Interests in respect of any Noteholder or Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the Insurer; assignment interests of such Investor Beneficiary in respect of such Outstanding Issuance for such period;
(c) delegation by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Deed to any other entity, except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orClause 10.6;
(cd) any relevant representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Deed or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries in respect of any Outstanding Issuance and continues to be incorrect in any material respect when made; orfor a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Interest in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of the Investor Beneficiary in respect of any Outstanding Issuance affected for such period;
(de) the Servicer shall become subject consent to an Insolvency Event; or
(e) or take any corporate action relating to the appointment of a final judgment is rendered receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or proceedings are initiated against the Originator while acting as Servicer in an amount greater than $1,000,000 andTransferor under any applicable liquidation, insolvency, composition, re-organisation or similar laws for its winding-up, dissolution, administration or re-organisation (except for a solvent re-organisation) and such proceedings are not discharged within 30 60 days after entry thereofor a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets is legally and validly appointed and such judgment appointment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged14 days; or
(f) the Servicer or any Affiliate a director of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which admit in writing that the Servicer is liable (whether unable to pay its debts as they fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer makes a primary general assignment for the benefit of or secondary party) if the aggregate principal amount a composition with its creditors or voluntarily suspends payment of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by its obligations with a regularly scheduled required prepayment) prior view to the stated maturity thereof; orgeneral readjustment or rescheduling of its indebtedness,
(g) if the Servicer is the Originator or an Affiliate of the OriginatorRegulation AB Assessment Rules apply, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the set out in clause 9.4(c)(v). then so long as such Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party Default shall not have been remedied, either the right to forgive Receivables Trustee, if directed by the payment Investor Beneficiaries, or Investor Beneficiaries representing in aggregate more than 66 2/3% of principal or interest on any Note. Upon any such waiver of a past defaultthe Combined Aggregate Investor Interest, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except in each case by notice then given in writing to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service TransferSERVICER TERMINATION NOTICE"); and, without limitation, may terminate all of the Trustee is hereby authorized, empowered rights and instructed (upon the failure obligations of the Servicer as Servicer under this Deed. Notwithstanding the foregoing, a delay in or failure of performance referred to cooperatein paragraph (a) above for a period of 10 London Business Days or under paragraphs (b), (c) or (d) for a period of 60 London Business Days (in addition to any period provided in (a) to execute and deliver, on behalf (d) above) shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held reasonable diligence by the Servicer for deposit and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer from using reasonable efforts to perform its obligations in a timely manner in accordance with the Collection Accountterms of this Deed and any Transaction Document and the Servicer shall provide the Receivables Trustee with an Officer's Certificate (copied to any Enhancement Provider, the Reserve Account Transferor and the Investor Beneficiary) giving prompt notice of such failure or the Issuer's Accountdelay by it, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received together with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems a description of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days cause of such Service Transfer, (A) assemble such documents, instruments failure or delay and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable its efforts so to collect the Acquired Advances and shall make the same available to the Successor Servicer or the Trustee or perform its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Receivables Trust Deed and Servicing Agreement (Turquoise Receivables Trustee LTD)
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give notice to the Trustee to make 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 date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or the terms of any of the other Transaction Documents to which it is a party; orEnhancement Agreement;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or Agreement which has a material adverse effect on the Investor Certificateholders of any of the other Transaction Documents to which it is a partySeries, which failure continues unremedied for a period of ten 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee; or the Servicer shall delegate its duties under this Agreement, except as permitted by Sections 3.01 and 8.07;
(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 a material adverse effect on the rights of the Investor Certificateholders of any Series and which 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or;
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator or other similar official in an amount greater than $1,000,000 andany bankruptcy, within 30 days after entry thereofinsolvency, such judgment is not discharged readjustment of debt, marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any Affiliate 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; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure Default shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration ofnot have been remedied, the maturity of such Debt; or any such Debt shall be declared Trustee, by notice then given in writing to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business"Termination Notice"), assets, liabilities, operations, or financial condition, (2) has defaulted on any may terminate all but not less than all of its material the rights and obligations (other than those included in this Indenture), or (3its obligations that have accrued up to the time of such termination) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply as Servicer under this Agreement and in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer Receivables and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedproceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); ) and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days promptly transfer a copy of such Service Transfer, (A) assemble such documents, instruments and other its electronic records (including computer tapes and discs), which evidence relating to the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available Receivables 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.01(a) for a period of 10 Business Days or under Section 10.01(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its respective obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Agents, any Enhancement Providers, the Seller and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificateholders with an Officers' Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts 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 (each being a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 the Indenture, any Indenture Supplement or this Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 and which Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee, conservator, receiver, liquidator or similar official in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary Default shall not have been remedied, either the Indenture Trustee or secondary party) if the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Agreement, the Indenture and its consequences, each Indenture Supplement; 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 Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferors which would permit the Transferors at their option to forgive purchase the payment of principal or interest Notes on any Notethe Payment Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the 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 shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicershall as soon as practicable, such assistance to includebut within not more than 20 Business Days, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or information of any kind which the Trustee or 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 designeeinterests. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances shall pay to the related Obligors Indenture Trustee and direct that payments be made directly 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 the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1a) aboveabove 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 Trustee may direct the Obligors of Acquired Advances or Trust, each Transferor and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the IssuerSeries Enhancer with an Officer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (each being a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or notice to the date Indenture Trustee to make 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 date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of ten 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 TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Notes aggregating more than 25% of the outstanding principal amount of any Noteholder Series adversely affected thereby, and which continues to materially adversely affect the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) or the InsurerServicer shall delegate its duties under this Agreement, except as permitted by Section 5.7; assignment by provided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer of its duties without (i) an express assumption of has made a deposit in the Servicer's obligations hereunder by Collection Account with respect to such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orfailure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect when madeand which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or the Transferor, or to the Servicer, the Transferor and the Indenture Trustee by the Holders of Notes evidencing Undivided Interests aggregating more than 50% of the outstanding principal amount of any Series adversely affected thereby; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default 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 writing to the Servicer (and to the Indenture Trustee and the Transferor if given by the Noteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due under this Agreement and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
Receivables and the proceeds thereof and appoint a new Servicer (g) if the Servicer is the Originator or an Affiliate a "Service Transfer"). The rights and interests of the Originator, the occurrence of Transferor Interest will not be affected by any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, Rating Agencies and any Enhancement Provider of such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivednotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); Servicer, and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, take all reasonable actions 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 hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Recoveries. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails reasonably deems to provide the notice to Obligors required in paragraph (1) abovebe confidential, the Trustee may direct Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Obligors of Acquired Advances or any of themServicer shall deem necessary to protect its interest; provided, however, that payment no such agreement shall prohibit (i) disclosure of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in information that is or becomes publicly known, or information obtained by such Successor Servicer from sources other than the Issuer's name and on behalf other parties hereto, (ii) disclosure of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advancesinformation (A) if required to do so by any applicable law, includingrule or regulation, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect (B) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of such Acquired Advances Successor Servicer's business, (C) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Successor Servicer or any Affiliate or an officer, director, employer or shareholder thereof is a party or (D) to any Affiliate, independent or internal auditor, agent, employee or attorney of such Successor Servicer having a need to know the same, provided that such Successor Servicer advises such recipient of the confidential nature of such disclosed information, or (iii) any other disclosure authorized by the Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.1(a) for a period of 10 Business Days after the applicable grace period or a delay in or failure of performance referred to in Section 7.1(b) or (c) for a period of 60 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and enforcing such Acquired Advancesdelay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Enhancement Provider, the Transferor and the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. The Servicer shall 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 (each being a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee or to the Servicer, the Owner Trustee and the Indenture Trustee 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 of Notes, not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes 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 or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, Classes or Tranches of Notes, not less than 50% of the Servicer in this Indenture aggregate unpaid principal amount of all Series, Classes or any other Transaction Document Tranches of Notes to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against the Originator while acting any other Servicer Default described in any Indenture Supplement; then, so long as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer Default shall not have been remedied, either the Indenture Trustee or any Affiliate the Holders of Notes evidencing more than 50% of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate unpaid principal amount of such Debt is $250,000 or moreall affected Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified notice then given in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, 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 Control Party shall Servicer cannot have in good faith cure the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Servicer Default which gave rise to the extent expressly so waivedTermination 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 shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"); ”) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Issuing Entity. The Servicer shall within 20 Business Days transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 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 subsection (a) above for a period of 10 Business Days after the applicable grace period or under subsection (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 or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request Owner Trustee and at the Servicer's expense, give Transferor with an Officer’s Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances such failure or delay by it, together with a description of its efforts so to the related Obligors and direct that payments be made directly to the Trustee or perform its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Wachovia Card Receivables LLC)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 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 or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against any other Servicer Default described in the Originator while acting as Servicer related Indenture Supplement; then, in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration event of any such stayServicer Default, such judgment is not discharged; or
(f) so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or any Affiliate the Holders of Notes evidencing more than 50% of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, if within sixty (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a purchase option and right of first refusal to the Transferor which would permit the Transferor at its option to redeem or acquire the Notes on the Distribution Date in the next calendar month; provided further, however, the foregoing purchase option or right of first refusal shall not have apply in the right to forgive the payment of principal or interest on any Note. Upon any such waiver case of a past default, such default shall cease Servicer Default set forth in subsection 7.01(d). The price to exist, and any such default redeem or acquire the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee in writing prior to the Record Date for the Distribution Date of the acquisition if it is exercising such purchase option and right of first refusal. If the Transferor exercises such purchase option or right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"”); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, shall within twenty (x20) assisting any accountants selected by the Successor Servicer to verify collection Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment 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 all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Series Enhancer with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Signet Jewelers LTD)
Servicer Defaults. If any one (a) Definition. Any of the following events (each being will constitute a "Servicer Default") shall occur and be continuing" pursuant to this Agreement:
(ai) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before deliver any Monthly Statement or Annual Statement which continues beyond the second Business Day after the date upon which such payment, transfer transfer, deposit or deposit delivery is required to be made under the terms of pursuant to this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(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 Indenture or any Agreement, if such failure materially and adversely affects the rights of the other Transaction Documents to which it is a party, which failure Lender and continues unremedied for a period of ten thirty days after the earlier of (a) the date on which written notice thereof, requiring the same to demand that such failure be remedied, shall have been remedied is given to the Servicer by the Trustee, Lender or to (b) the date on which a Responsible Officer of the Servicer and the Trustee by becomes aware of such failure;
(iii) any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption delegation of the Servicer's obligations hereunder by such assignee, (ii) duties pursuant to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted pursuant to Section 6.7;
(civ) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove Agreement proves to have been incorrect in any material respect when mademade and such incorrect statement has a material and adverse effect on the rights of the Lender and continues to be incorrect in any material respect for a period of thirty days after the earlier of (a) the date on which written demand that such incorrect statement be remedied is given to the Servicer by the Lender or (b) the date on which a Responsible Officer of the Servicer becomes aware of such incorrect statement; or
(dA) the Servicer shall become subject consents to an Insolvency Event; or
the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceeding of or relating to the Servicer or all or substantially all of its Property, (eB) a final judgment decree or order of a court or agency or supervisory authority having proper jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceeding, or for the winding-up or liquidation of the Servicer's affairs, is rendered entered against the Originator while acting as Servicer and such decree or order remains in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged force undischarged or execution thereof stayed pending appealunstayed for a period of 90 days, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(fC) the Servicer or any Affiliate of the Servicer shall fail admits in writing its inability to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to acceleratepay, or fails to permit the acceleration ofpay, the maturity of such Debt; its debts generally as they become due, files a petition or commences any such Debt shall be declared case or proceeding to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence take advantage of any Wind Down Event specified in Section 9.01(l) applicable bankruptcy, insolvency or (p); or
(h) reorganization statute, makes any assignment for the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any benefit of its material obligations (other than those included in this Indenture), creditors or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance voluntarily suspends payment of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Servicing Agreement (Trans Leasing International Inc)
Servicer Defaults. (a) If any one of the following events (each being a "“Servicer Default"”) shall occur occurs and be continuingis continuing with respect to the Servicer:
(ai) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(bii) any 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 Indenture or any of the other Transaction Documents to which it is a party, which failure Agreement that has an Adverse Effect and continues unremedied for a period of ten 60 days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have has been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any Noteholder such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Insurer; assignment by the Servicer of delegates or assigns its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or except as permitted by Sections 3.01(a), 5.02 and 6.02;
(iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove Agreement proves to have been incorrect in when made and such error has an Adverse Effect on the rights of the Noteholders of any material respect when made; or
Series (dwhich determination will be made without regard to whether funds are then available pursuant to any Series Enhancement) the Servicer shall become subject to an Insolvency Event; or
(e) and such Adverse Effect continues for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 period of 60 days after the expiration of any such staydate on which notice thereof, such judgment is not discharged; or
(f) requiring the same to be remedied, has been given to the Servicer by the Owner Trustee or any Affiliate the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by the Holders of Notes evidencing not less than 10% of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes (or, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating with respect to any such Debt representation, warranty or any other eventcertification that does not relate to all Series, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate 10% of the Originatoraggregate unpaid principal amount of all Series to which such representation, the occurrence of any Wind Down Event specified in Section 9.01(l) warranty or (pcertification relates); or
(hiv) the Servicer consents to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, is entered against the Servicer and such decree or order remains in force undischarged or unstayed for a period of 60 days; or the Servicer admits in writing its inability to pay its debts generally as they become due, files a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, makes any assignment for the benefit of its creditors or voluntarily suspends payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default has not been remedied, either the Indenture Trustee or the Insurer (A) shall receive Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, by notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, that if within 60 days of receipt of a Termination Notice the Control Party shall Indenture Trustee does not have receive any bids from Eligible Servicers in accordance with Section 6.02(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 will grant a right of first refusal to forgive the 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 the 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 principal or interest on any Note. Upon any such waiver of their Notes and will result in a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to corresponding increase in the extent expressly so waived. Transferor Interest.
(b) After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.026.02, all authority and power of the Servicer under this Indenture shall Agreement will pass to and be vested in such the Successor Servicer (a "Service Servicing Transfer"”); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer be that are held by the Servicer for deposit to on the Collection Account, the Reserve Account or the Issuer's Accountdate of transfer, or which that have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall that thereafter be are received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection will within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable will promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer reasonably requests. To the extent that compliance with this Section requires the Servicer to disclose to the Successor Servicer or information of any kind which the Trustee or Servicer deems to be confidential, the Successor Servicer will enter into such customary licensing and confidentiality agreements as the Servicer deems reasonably necessary to protect its designee. At any time following a Termination Notice:interests.
(1c) The Notwithstanding the foregoing, a delay in or failure of performance referred to in clause (i) of Section 6.01(a) for a period of ten Business Days after the applicable grace period or under clause (ii) or (iii) of Section 6.01(a) for a period of 60 Business Days after the applicable grace period, will not constitute a Servicer shallDefault if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or a public enemy, at acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes outside the Trustee's request and at reasonable control of the Servicer's expense. The preceding sentence 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 will provide the Indenture Trustee, give the Owner Trustee, the Transferor and any Series Enhancer with an Officer’s Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances such failure or delay by it, together with a description of its efforts so to the related Obligors and direct that payments be made directly to the Trustee or perform its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Ford Credit Floorplan LLC)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or notice to the Trustee pursuant to Article IV or to deliver any reports to the Trustee and the Certificateholders pursuant to Article V or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement, in each case, within one Business Day after the date that such payment, transfer transfer, deposit, withdrawal or deposit drawing, such report or such instruction or notice is required to be made made, delivered or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a partySupplement; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents to Supplement which it is a party, which failure continues unremedied for a period of ten days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurersixty (60) days; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect in any material respect when mademade or deemed made or delivered and continues to be incorrect for a period of sixty (60) days; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 fail admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (unless dismissed within thirty days) as debtor a proceeding under any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on any Debt for which voluntarily suspend payment of its obligations; the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount assigns any of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture Agreement, except as permitted by the terms of this Agreement; or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced fails to maintain a material adverse change in its businesstangible net worth of at least $250,000; then, assetsso long as such Servicer Default shall not have been remedied, liabilities, operationseither the Trustee, or financial condition, the Requisite Certificateholders (2) has defaulted on determined without giving effect to Investor Certificates for such Series held by the Transferor or any of its material obligations Affiliates) for all Series, by notice then given in writing to the Servicer, (other than those included in this Indentureand to the Trustee if given by the Investor Certificateholders) (a "Servicer Termination Notice"), or (3) has ceased to conduct its business in may terminate all of the ordinary course; or
(i) rights and obligations of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a as Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, Account or any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) in assisting the Successor Servicer in making enforcing all rights to Insurance Proceeds applicable to the computer systems of Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Servicer and Receivables to the Successor Servicer compatible in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments rights and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable obligations under any Enhancement with respect to collect the Acquired Advances and shall make the same available any Series to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make such payment, transfer or deposit on the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement or any Supplement on or before three Business Days after the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; ormade;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any Supplement that has a material adverse effect on the holder of the other Transaction Documents to which it is a partyTransferor Certificate or the Certificates of any Series, which failure continues unremedied for a period of ten 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 by the holders of Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating more than 50% of the Invested Amount of any Series materially adversely affected thereby; or the Servicer shall assign its duties under this Agreement, except as permitted by Sections 8.2, 8.5 and 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement, any Supplement or in any certificate or report delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the holder of the Transferor Certificate or the Investor Certificates of any Series and which 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer holders of its duties without (i) an express assumption Investor Certificates of any Series evidencing Undivided Interests in the Trust Assets aggregating not less than 51% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance Invested Amount of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeSeries materially adversely affected thereby; or
(d) the Servicer shall voluntarily seek, consent to or acquiesce in the benefit or benefits of the Bankruptcy Code or, voluntarily or involuntarily, become a party to (or be made the subject to an Insolvency Event; or
(eof) a final judgment any proceeding provided for under the Bankruptcy Code, other than as creditor or claimant, and in the event such proceeding is rendered against involuntary, the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment petition instituting same is not discharged or execution thereof stayed pending appealdismissed within 90 days of its filing; then, or within 10 days after in the expiration event of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, so long as the Control Party may among other thingsServicer Default shall not have been remedied, declare an Event the Trustee may, and at the direction of Defaultthe holders of Investor Certificates evidencing Undivided Interests aggregating more than 51% of the Invested Amount of any Series materially and adversely affected thereby, deliver a Termination Notice shall by notice then given in writing to the Servicer and effect the Transferor (with a Service Transfer. The Control Party copy thereof to each Rating Agency and to the Trustee if given by a Person other than the Trustee (a "Termination Notice"), may waive any default by terminate the Issuer or rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture Agreement and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, in and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedReceivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement and each Supplement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in 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, at its expense, cooperate with the Trustee Trustee, the Transferor and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicershall at its expense promptly transfer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting extent it is permitted by applicable law to do so, its electronic records relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 requestrequest and shall promptly transfer, and (B) segregate all cashto the extent it is permitted by applicable law to do so, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer all other records, correspondence and documents necessary for the Trusteecontinued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request and shall, andto the extent not prohibited by licensing restrictions, promptly upon receiptprovide access to or copies of computer software, remit all 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 cashownership 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, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails reasonably deems to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.be
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Stone Container 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 instruct or give notice to the Receivables Trustee (ior the Bank Account Operator acting on the Receivable Trustee's behalf) pursuant to an agreed schedule of collections and allocations or to instruct the Receivables Trustee (or the Bank Account Operator acting on the Receivable Trustee's behalf) to deliver make any information required drawing, withdrawal, or payment pursuant to the Trustee required pursuant to Section 3.04(g)(vi) relevant documents including under any enhancement on or before the date occurring five Business Days after the date such information payment, transfer, deposit, withdrawal or drawing or such instructions or notice is required to be given made or given, as the case may be, under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture Deed or any of the other Transaction Documents to which it is a party; orRelevant Document;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Deed or any Relevant Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Investor Beneficiaries of any Outstanding Issuance and which it is a partyfailure, which failure if capable of remedy, continues unremedied for a period of ten 30 days or more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50%, or more of the Investor Interests in respect of any Noteholder or Outstanding Series adversely affected thereby and continues to have a Material Adverse Effect on the Insurer; assignment interests of such Investor Beneficiary in respect of such Outstanding Series for such period;
(c) delegation by the Servicer of its duties without under this Deed to any other entity, except as permitted by Clause 10.6 (i) an express assumption Delegation of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orDuties);
(cd) any relevant representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Deed or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries in respect of any Outstanding Series and continues to be incorrect in any material respect when made; orfor a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee or to the Servicer and the Receivables Trustee by the Investor Beneficiary or Investor Beneficiaries holding 50%, or more of the Aggregate Investor Interest in respect of any Outstanding Series adversely affected thereby and continues to have a Material Adverse Effect on the interests of the Investor Beneficiary in respect of any Outstanding Series affected for such period;
(de) the Servicer shall become subject consent to an Insolvency Event; or
(e) or take any corporate action relating to the appointment of a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 andreceiver, within 30 days after entry thereofadministrator, such judgment is not discharged administrative receiver, liquidator, trustee or execution thereof stayed pending appeal, similar officer of it or within 10 days after the expiration relating to all or substantially all of any such stay, such judgment is not discharged; orits revenues and assets;
(f) an order of the Servicer court is made for the winding-up, dissolution, administration or any Affiliate reorganisation (except for a solvent re-organisation) of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure order shall continue after the applicable grace period, if any, specified have remained in the agreement force undischarged or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect unstayed for a period of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or60 days;
(g) if a receiver, administrator, administrative receiver, liquidator, trustee or similar officer is legally and validly appointed over the Servicer is the Originator or an Affiliate relating to all of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p)Servicer's revenues and assets; or
(h) the Trustee or the Insurer (A) shall receive notice from a duly authorised officer of the Servicer shall admit in writing that the Servicer is no longer able unable to discharge pay its duties under this Indenture or (Bdebts as they fall due within the meaning of Section 123(1) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that of the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer Insolvency Act 1986 or the Servicer in makes a general assignment or trust for the performance benefit of their or a composition with its creditors or voluntarily suspends payment of its obligations under this Indenture and with a view to the general readjustment or rescheduling of its consequencesindebtedness, provided, however, that the Control Party then so long as such Servicer Default shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent within the applicable grace period (if any), the Beneficiaries (or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by while the Servicer is TPF, the Investor Beneficiaries) may by unanimous vote resolve to terminate all of a Termination Notice, the rights and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power obligations of the Servicer as Servicer under this Indenture shall pass Deed by notice then given in writing to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible Facilitator (a Termination Notice). Notwithstanding the foregoing, a delay in or failure of performance of matters referred to the extent necessary to effect the Service Transfer. The Servicer shall(a) in paragraph (a) above, at its expenseif capable of remedy, within remain unremedied for a period of five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.or
Appears in 1 contract
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 (i) to deliver make any information payment, transfer or deposit or to give instructions or to give notice to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of the other Transaction Documents any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which it is a party, which failure continues unremedied for a period of ten 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 Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(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 a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default 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 shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due under this Agreement and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity Receivables and the proceeds thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall not have grant a right of first refusal to the right Sellers which would permit the Sellers at their option to forgive purchase the payment of principal or interest Certificateholders’ Interest on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The purchase price for the Certificateholders’ Interest shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"”); and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorneyattorney- in-in fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails reasonably deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war (including acts of terrorism), that payment public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under the Sellers, any Series Enhancer and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Investor Certificateholders with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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
Servicer Defaults. If any one of the following events (each being 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 (i) to deliver any information to contents of the Trustee required Lockbox Account pursuant to Section 3.04(g)(vi) 4.02, to direct the Lockbox ------------ Account Bank to make deposits in the Investment Account at the times specified herein, to make any Servicer Advance in accordance with Section 3.03, to make ------------ any deposits to the Investment Account of Collections received or required to be made by Servicer at the times specified herein, to give instructions or notice to Trustee to make a required drawing under the Letter of Credit or to 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 information deposit, wire transfer or such instruction or notice is required to be given made or given, as the case may be, under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(b) any 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 Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder the Majority Certificateholders or the Bond Insurer; assignment by the or , except as provided in Section ------- 9.02
(a) hereof, Servicer of shall delegate or attempt to delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution ------- this Agreement, and/or (iii) rating agency consent; or;
(cd) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders or Bond Insurer or on the ability of Servicer to perform its obligations hereunder and which continues to be incorrect in any material respect when madefor a period of 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Trustee, or to Servicer and Trustee by the Majority Certificateholders or Bond Insurer;
(e) Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of 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
(dm) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt Default Charge-off Ratio shall be declared to be due and payable or required to be prepaid more than 2.75%; (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that if, after the Control Initial Cut-Off Date, Servicer shall -------- ------- merge, consolidate or effect any other corporate structural change, including without limitation any sale of the majority of its voting securities or transfer of ownership, the Controlling Party shall not have the right right, in its sole discretion, to forgive modify the payment foregoing Servicer Defaults) then, Trustee may or, at the written direction of principal or interest on any Note. Upon any such waiver the Controlling Party, by notice then given in writing to Servicer (a "Termination Notice"), shall terminate all of a past default, such default shall cease to exist, the rights and any such default shall be deemed to have been remedied for every purpose ------------------ obligations of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Rockford as "Servicer" hereunder and in and to the extent expressly so waivedTrust Assets and the proceeds thereof. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall Agreement shall, with the prior written consent of the Controlling Party, pass to and be vested in such Successor Servicer (a "Service Transfer")Back-up Servicer; and, without limitation, the Seller, Back-up Servicer and Trustee is are hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperatecooperate with Seller, at its expenseBack-up Servicer, with the Controlling Party and Trustee and such any Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Trust Assets provided for under this IndentureAgreement, including and all authority over the Accounts and over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by Servicer in the Servicer to Investment Account or the Collection Account, or any other account, Certificate Accounts or which shall thereafter be received with respect to the Acquired AdvancesTrust Assets, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. Servicer to verify collection records and reports made prior shall promptly transfer its Lease Management System relating to the Service Transfer and (y) assisting Trust Assets to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, the Lease Files, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Trust Assets in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 9.01 shall ------------ require Servicer to disclose to the Successor Servicer or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The kind which Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances reasonably deems to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) aboveconfidential, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any Successor Servicer shall be required to enter into such Acquired Advances be made directly customary licensing and confidentiality agreements as Servicer shall deem reasonably necessary to the Trustee or protect its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesinterest.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Rockford Industries Inc)
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 (i) to deliver any information to the Trustee Collateral Agent required pursuant to Section 3.04(g)(vi6.01(f) on or before the date such information is required to be given under the terms of this Indenture Credit Agreement and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the InsurerCollateral Agent, (ii) to deliver any other information or reports to the Trustee Collateral Agent required pursuant to Section 3.04(g) 6.01 (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Settlement Report) on or before the date such information, Servicer's Daily Report or Monthly Settlement Report is required to be given or made under the terms of this Indenture Credit Agreement and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Settlement Report) remain unremedied for ten Business Days after written notice from the Trustee or the InsurerCollateral Agent, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture Credit Agreement or any of the other Transaction Facility Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Credit Agreement or any of the other Transaction Facility Documents to which it is a party, which failure continues unremedied for a period of ten days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by any Noteholder of the Administrative Agent, the Surety, or Triple-A; or the Insurer; assignment by the Servicer of shall assign its duties without (i) an express assumption under this Credit Agreement or under any of the Servicer's obligations hereunder by such assigneeother Facility Documents to which it is a party, (ii) to except as permitted in accordance with the extent the Servicer is the Originator, continued performance terms of its obligations under the Purchase Sections 10.02 and Contribution Agreement, and/or (iii) rating agency consent13.04; or
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Facility Document to which it is a party or in any certificate delivered pursuant to this Indenture Credit Agreement or any other Transaction Facility Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator Ag Services while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator Ag Services or an Affiliate of the OriginatorAg Services, the occurrence of any Wind Down Event of Default specified in Section 9.01(l) or (pr); or
(h) any of the Trustee Collateral Agent, the Administrative Agent, Triple-A or the Insurer Surety (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture Agreement or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this IndentureAgreement), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a THEN, so long as such Servicer DefaultDefault shall not have been remedied, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice Collateral Agent by notice given in writing to the Servicer (a "Servicer Termination Notice"), may at the request and effect a Service Transfer. The Control Party may waive any default by shall at the Issuer direction of Triple-A or the Surety (and in either case, with the consent of the Liquidity Agent) terminate all of the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any Agreement (such waiver of termination being herein called a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived"Servicer Transfer"). After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer")appointed pursuant to Section 10.02; and, without limitation, the Trustee Collateral Agent is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee Collateral Agent and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as and Loan Documents provided for under this IndentureAgreement, including including, without limitation, all authority over all any Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve or withdrawal in a Lock-Box Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, Account or which shall thereafter be received by the Servicer with respect to the Acquired AdvancesAdvances and Loan Documents, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) in assisting the Successor Servicer in making the computer systems of the Servicer and enforcing all rights under this Agreement including, without limitation, allowing the Successor Servicer compatible Servicer's personnel access to the extent necessary to effect Servicer's premises for the Service Transfer. The Servicer shall, at its expense, within five Business Days purpose of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence collecting payments on the Acquired Advances and the other Pledged Assets, and which are necessary or desirable Loan Documents. The Servicer shall promptly transfer its electronic records relating to collect the Acquired Advances and shall make the same available Loan Documents 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other Records and necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Acquired Advances and Loan Documents in the manner and at such cash, checks times as the Successor Servicer shall reasonably request. The Servicer shall allow the Successor Servicer access to the Servicer's officers and instruments employees. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer or information of any kind which the Trustee or Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its designeeinterest and as shall be satisfactory in form and substance to the Successor Servicer. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances hereby consents to the related Obligors and direct that payments be made directly entry against it of an order for preliminary, temporary or permanent injunctive relief by any court of competent jurisdiction, to the Trustee or its designee;
(2) If ensure compliance by the Servicer fails to provide with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors provisions of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesthis paragraph.
Appears in 1 contract
Servicer Defaults. If any one Any of the following events (each being shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) its capacity as Servicer to make any payment, transfer or deposit on required by any Transaction Document to be made by it or before the date to give instructions or to give notice to Trustee to make such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to deposit, which it is a party; orfailure continues unremedied for three Business Days,
(b) any 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 Indenture Agreement or any of the other Transaction Documents to which it is a partyDocument, which failure has a material adverse effect on the Holders of any Series or Purchased Interest and continues unremedied for a period of ten 30 days after the date on which written notice thereofof the failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder Investor Certificateholder or Purchaser or, subject to the Insurer; assignment by the Servicer of its duties without (i) an express assumption prior written approval of the Servicer's obligations hereunder by such assigneeRequired Series Holders for each outstanding Series, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orTransferor,
(c) Servicer shall assign its duties under this Agreement, except as permitted by Sections 3.1(b) and 8.3,
(d) 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 Indenture or any other Transaction Document to which it is a party or in any certificate or other document or instrument delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove fail to have been incorrect correct in any material respect when made; made or delivered, which failure has a materially adverse effect on the Certificateholders or any Purchased Interest and which materially adverse effect continues unremedied for a period of 15 Business Days after the date on which written notice of failure, requiring the same to be remedied, shall have been given to Servicer by Trustee or to Servicer and Trustee by any Investor Certificateholder or Purchaser or
(d) the Servicer shall become , subject to an Insolvency Event; the prior written approval of the Required Series Holders for each outstanding Series, Transferor, or
(e) any Bankruptcy Event shall occur with respect to Servicer. In the event of any Servicer Default, so long as such Servicer Default 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 (a final judgment is rendered against "Termination Notice"), terminate all (but not less than all) the Originator while acting rights and obligations of Servicer as Servicer under this Agreement and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. As soon as possible, and in any event within five Business Days, after an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after Authorized Officer of Servicer has obtained knowledge of the expiration occurrence of any such stayServicer Default, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which furnish Transferor, Trustee, each Agent and the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount Rating Agencies, and Trustee shall promptly furnish each Investor Certificateholder, notice of such Debt is $250,000 Servicer Default. Notwithstanding the foregoing, a delay in or more, when the same becomes due and payable failure in performance referred to in subsection (whether by scheduled maturity, required prepayment, acceleration, demand or otherwisea) and such failure shall continue for a period of ten Business Days after the applicable grace period, if any, specified or in the agreement subsection (b) or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue (d) for a period of 30 Business Days after the applicable grace period, if any, specified in such agreement or instrument shall not constitute a Servicer Default if the effect of such default delay or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default failure could not have been prevented by the Issuer or the Servicer in the performance exercise of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt reasonable diligence by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to delay or failure was caused by an act of God or the extent necessary to effect the Service Transferpublic enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve Servicer shall, at from using its expense, within five Business Days best efforts to perform its obligations in a timely manner in accordance with the terms of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged AssetsTransaction Documents, and which are necessary or desirable to collect the Acquired Advances and Servicer 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 form as the Successor Servicer or the Trustee may reasonably requestpromptly give Transferor, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks each Agent and instruments to the Successor Servicer Transferor an Officer's Certificate notifying them of its failure or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Big Flower Press Holdings Inc)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any Agreement (PROVIDED, that with respect to payments to the Investor Certificateholders of the other Transaction Documents to which it is a party; orInvested Amounts, such two Business Day grace period shall not apply);
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Noteholder Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or any other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervi sory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any Affiliate bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "TERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which as Servicer under this Agreement. The Servicer agrees that promptly after it receives such Termination Notice, the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating will at its own expense deliver to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer bailee of the Trustee a computer file or microfiche list containing a true and effect a Service Transfer. The Control Party may waive any default complete list of all Accounts, identified by account number and setting forth the Issuer or Outstanding Balance of each Receivable as of the Servicer in the performance date of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment receipt of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedTermination Notice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, the Equalization Account, the Interest Funding Account or the Principal Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Receivables. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior or electronic copies thereof relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, within five Business Days of such Service Transferall reasonable costs and expenses (including attorneys, (Afees) assemble such documentsincurred in connection with transferring the records, instruments correspondence and other records (including computer tapes and discs), which evidence documents with respect to the Acquired Advances Receivables and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Trust Property to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all Amending this Agreement to reflect such cash, checks and instruments to the succession as Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request pursuant to this Section 10.1 and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.Section
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Apparel Retailers Inc)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before into the date such payment, transfer or deposit is Collection Account (including with respect to bifurcation and remittance of Collections) as required to be made under the terms by this Agreement which continues unremedied for a period of this Indenture or any of the other Transaction Documents to which it is a party; ortwo 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 Indenture Agreement or any of the other Transaction Documents to which it the Servicer is a party, which failure party (including any material delegation of the Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of ten 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer (with a copy to the Backup Servicer) by the TrusteeAdministrative Agent or any Lender Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer Servicer;
(e) the Originator or an Affiliate thereof shall cease to be the Servicer;
(f) the Originator permits (i) Consolidated Net Worth to be less than $300,000,000 or (ii) the ratio of Consolidated Funded Debt to Consolidated Net Worth to exceed eight (8) times Consolidated Funded Debt (excluding trust preferred securities, preferred stock and the Trustee by subordinated convertible bonds) to Consolidated Net Worth (including trust preferred securities, preferred stock and subordinated convertible bonds);
(g) any Noteholder or the Insurer; assignment failure by the Servicer of its duties without (i) an express assumption of to deliver any required Servicing Report or other Required Reports hereunder on or before the Servicer's obligations hereunder by date occurring two Business Days after the date such assigneereport is required to be made or given, (ii) to as the extent the Servicer is the Originatorcase may be, continued performance of its obligations under the Purchase and Contribution terms of this Agreement, and/or (iii) rating agency consent; or;
(ch) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made, which has a Material Adverse Effect on the Administrative Agent, any Lender Agent or the Secured Parties and which continues to be unremedied for a period of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Lender Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(i) any financial or other information reasonably requested by the Administrative Agent, any Lender Agent or any Lender is not provided as requested within 30 days following the Servicer’s receipt of such request; or
(dj) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered rendering against the Originator while acting 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; then notwithstanding anything herein to the contrary, so long as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is Servicer Default shall not discharged; or
(f) have been remedied within any applicable cure period prior to the Servicer or any Affiliate date of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable Termination Notice (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration ofdefined below), the maturity of such Debt; or any such Debt shall be declared Administrative Agent, by written notice to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1with a copy to the Trustee and Backup Servicer) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture“Servicer Termination Notice”), or (3) has ceased to conduct its business in may terminate all of the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit rights and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer as Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesAgreement.
Appears in 1 contract
Sources: Loan and Servicing Agreement (NewStar Financial, Inc.)
Servicer Defaults. (a) If any one of the following events (each being a "Servicer Default") shall occur and be continuing:
(ai) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(bii) 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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(iii) 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 (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 notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates);
(iv) the Servicer in this Indenture shall consent to the appointment of a bankruptcy trustee or any other Transaction Document to which it is a party conservator or receiver or liquidator in any certificate delivered pursuant bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to this Indenture 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 other Transaction Document to which it is a party bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall prove to have been incorrect entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 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 material respect when madeapplicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(dv) any other Servicer Default described in the Servicer shall become subject related Indenture Supplement. Notwithstanding the foregoing, a delay in or failure of performance referred to an Insolvency Event; or
(ein Section 7.01(a)(i) for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days period of ten Business Days after the expiration applicable grace period or under Section 7.01(a)(ii) or (a)(iii) for a period of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if any, specified in such delay or failure could not be prevented by the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect exercise of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than reasonable diligence by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator and such delay or failure was caused by an Affiliate act of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee God or the Insurer (A) 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 receive notice from not relieve the Servicer that from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the Servicer is no longer able to discharge its duties under terms of this Indenture or (B) shall determine, in their respective reasonable judgment Agreement and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in provide the Indenture Trustee, Owner Trustee, each Transferor and any material respect Series Enhancer with the Credit and Collection Policy in the performance an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its duties hereunder; Following efforts so to perform its obligations.
(b) Upon the occurrence of a Servicer Default, so long as the Control Party may among other thingsServicer Default shall not have been remedied, declare an Event either the Indenture Trustee or the Holders of DefaultNotes evidencing more than 50% of the aggregate unpaid principal amount of all Notes, deliver a Termination Notice by notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, that the Control Party shall not have the right to forgive the payment if within 60 days of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on Notice the date that Indenture Trustee does not receive any bids from Eligible Servicers in accordance with Section 7.02(c) to act as a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure receives an Officer's Certificate of the Servicer to cooperate) the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to execute and deliverthe Termination Notice, the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its option to acquire the Notes on behalf the Distribution Date in the next calendar month. The price for the Notes shall be equal to the sum 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received amounts specified therefor with respect to each outstanding Series in the Acquired Advances, and (ii) assisting related Indenture Supplement. The Transferor shall notify the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made Indenture Trustee prior to the Service Transfer and (y) assisting Record Date for the Successor Servicer in making the computer systems Distribution Date of the Servicer and acquisition if it is exercising such right of first refusal. If the Successor Servicer compatible to Transferor exercises such right of first refusal, the extent necessary to effect Transferor shall deposit the Service Transferprice into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments price shall be allocated and other records (including computer tapes and discs), which evidence distributed to Noteholders in accordance with the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice terms of the Trustee's security interest in the Acquired Advances to the related Obligors Indenture and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advanceseach Indenture Supplement.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Nordstrom Credit Inc)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any applicable Supplement; provided, however, that any such failure caused by a nonwillful act of the other Transaction Documents to which it is Servicer shall not constitute a party; orServicer Default if the Servicer promptly remedies such failure within five business days after receiving notice thereof;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents to which it is a partySupplement, which failure has a material adverse effect on the Investor Certificateholders of any Series (without regard to the amount of any Enhancement) and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Noteholder Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or the Excess Funding Account and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Net Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments rights and other records (including computer tapes and discs), which evidence obligations under the Acquired Advances and the other Pledged Assets, and which are necessary or desirable Enhancement with respect to collect the Acquired Advances and shall make the same available any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to under subsection 10.1(a) for a period of ten (10) Business Days after the applicable grace period or under subsection 10.1(b) or (c) for a period of sixty (60) Business Days after the 95 applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time best reasonable efforts to time constituting Collections of Acquired Advances perform its obligations in a timely manner acceptable to in accordance with the Successor terms of this Agreement and the Servicer and shall provide the Trustee, andany Enhancement Provider, promptly upon receipt, remit all such cash, checks the Transferor and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeHolders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuingcontinuing after the Certificate Trust Termination Date:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or notice to the date Indenture Trustee to make 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 date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues unremedied for a period of ten 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 TrusteeIndenture Trustee or the Transferor, or to the Servicer Servicer, the Transferor and the Indenture Trustee by the Holders of Notes aggregating more than 50% of the outstanding principal amount of any Noteholder Series adversely affected thereby, and which continues to materially adversely affect the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) or the InsurerServicer shall delegate its duties under this Agreement, except as permitted by Section 5.7; assignment by provided, however, that any such failure that relates to any particular Receivable or group of Receivables shall not constitute a Servicer Default if the Servicer of its duties without (i) an express assumption of has made a deposit in the Servicer's obligations hereunder by Collection Account with respect to such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orfailure in accordance with Section 3.3;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect when madeand which continues to affect materially and adversely the rights of the Noteholders of any Series (without regard to the amount of any Enhancement) for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or the Transferor, or to the Servicer, the Transferor and the Indenture Trustee by the Holders of Notes evidencing Undivided Interests aggregating more than 50% of the outstanding principal amount of any Series adversely affected thereby; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default 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 writing to the Servicer (and to the Indenture Trustee and the Transferor if given by the Noteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due under this Agreement and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
Receivables and the proceeds thereof and appoint a new Servicer (g) if the Servicer is the Originator or an Affiliate a "Service Transfer"). The rights and interests of the Originator, the occurrence of Transferor Interest will not be affected by any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by Indenture Trustee, upon giving or receiving a Termination Notice shall immediately notify the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, Rating Agencies and any Enhancement Provider of such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivednotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.027.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); Servicer, and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, take all reasonable actions 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 hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Recoveries. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 7.1(a) for a period of 10 Business Days after the applicable grace period or a delay in or failure of performance referred to in Section 7.1(b) or (c) for a period of 60 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its designeebest efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, any Enhancement Provider, the Transferor and the Holders of Notes with an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of the cause of such failure or delay and its efforts so to perform its obligations. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice shall immediately notify a Responsible Officer of the Trustee's security interest Indenture Trustee in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the writing of any Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesDefault.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Fnanb Credit Card Master Trust)
Servicer Defaults. If any one Any of the following events (each being shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) its capacity as Servicer to make any payment, transfer or deposit on required by any Transaction Document to be made by it or before the date to give instructions or to give notice to Trustee to make such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to deposit, which it is a party; orfailure continues unremedied for one Business Day,
(b) any 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 Indenture Agreement or any of the other Transaction Documents to which it is a partyDocument, which failure has a material adverse effect on the Holders of any Series or Purchased Interest and continues unremedied for a period of ten 30 days after the earlier of (i) the date on which written notice thereofof the failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder Investor Certificateholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, Purchaser and (ii) to the extent the date on which Servicer is the Originator, continued performance became aware of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orsuch failure,
(c) Servicer shall assign its duties under this Agreement, except as permitted by Sections 3.1(b) and 8.3,
(d) 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 Indenture or any other Transaction Document to which it is a party or in any certificate or other document or instrument delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove fail to have been incorrect correct in any material respect when made; or
(d) made or delivered, which failure has a materially adverse effect on the Servicer shall become subject to an Insolvency Event; or
(e) Certificateholders or any Purchased Interest and which materially adverse effect continues unremedied for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 period of 15 days after the expiration earlier of (i) the date on which written notice of failure, requiring the same to be remedied, shall have been given to Servicer by Trustee or to Servicer and Trustee by any Investor Certificateholder or Purchaser and (ii) the date on which Servicer became aware of such stayfailure, such judgment is not discharged; or
(f) any Bankruptcy Event shall occur with respect to Servicer. In the event of any Servicer or any Affiliate Default, so long as such Servicer Default shall not have been remedied, Trustee may (and, at the direction of the Required Investors, shall), by notice then given in writing to Servicer (a "Termination Notice"), terminate all (but not less than all) the rights and obligations of Servicer as Servicer under this Agreement and in and to the Receivables, the Related Transferred Assets and the proceeds thereof. Servicer shall fail provide notice of a Servicer Default in accordance with Section 10.3. Notwithstanding the foregoing, a delay in or failure in performance referred to pay any principal in subsection (a) for a period of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue ten Business Days after the applicable grace period, if any, specified or in the agreement subsection (b) or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue (d) for a period of 30 days after the applicable grace period, if any, specified in such agreement or instrument shall not constitute a Servicer Default if the effect of such default delay or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default failure could not have been prevented by the Issuer or the Servicer in the performance exercise of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt reasonable diligence by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to delay or failure was caused by an act of God or the extent necessary to effect the Service Transferpublic enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or similar causes. The preceding sentence shall not relieve Servicer shall, at from using its expense, within five Business Days best efforts to perform its obligations in a timely manner in accordance with the terms of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged AssetsTransaction Documents, and which are necessary or desirable to collect the Acquired Advances and Servicer 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the promptly give Trustee, and, promptly upon receipt, remit all such cash, checks each Agent and instruments to the Successor Servicer Transferor an Officer's Certificate notifying them of its failure or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesdelay.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriserve Food Distribution Inc /De/)
Servicer Defaults. If The occurrence of any one or more of ----------------- the following events (each being shall constitute a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) shall fail to deliver any information instruct the Securities Intermediary to remit to the Trustee required pursuant to Section 3.04(g)(vi) Agent on or before the date such information is any day any amount required to be given under remitted to the terms Agent on such day in respect of this Indenture Yield, Net Swap Amounts, Facility Fees or Capital and such failure shall remain unremedied continue for three (3) Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date when such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; oramounts became due;
(b) the Servicer shall fail to deposit, or fail to pay, or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for five (5) Business Days after the earlier of the date on which it has actual knowledge thereof or the date on which it has received written notice thereof by the Agent to the Servicer;
(c) failure on the part of the Seller or the Servicer to duly to observe or perform any other covenants or agreements of the Seller or the Servicer set forth in the Sale Agreement, this Indenture Agreement, or any of the other Transaction Documents to which it is a partyDocuments, which failure continues unremedied for a period of ten thirty (30) days after the earlier of knowledge thereof or the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer Seller or the Servicer, as applicable, by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orAgent;
(cd) any representation, warranty warranty, certification or certification statement made by the Servicer in under this Indenture or any other Transaction Document to which it is a party 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 Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect false or misleading in any material respect when made; or
as of the time made or deemed made (d) the Servicer shall become subject including by omission of material information necessary to an Insolvency Event; ormake such representation, warranty, certification or statement not misleading);
(e) the entry of a final judgment is rendered against decree or order by a court or agency or supervisory authority having jurisdiction in the Originator while acting as Servicer premises for the appointment of a conservator, receiver or liquidator for the Seller or the Servicer, in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appealsimilar proceedings, or within 10 days after for the expiration winding up or liquidation of their respective affairs, and the continuance of any such stay, such judgment is not discharged; ordecree or order unstayed and in 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 Affiliate applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(g) a default by the Servicer in the performance of any term, provision or condition contained in any agreement under which any indebtedness of the Servicer shall fail to pay any principal in excess of $10 million was created or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or moregoverned, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event which is to accelerate, or cause any such indebtedness to permit the acceleration of, the maturity of such Debtbecome due prior to its stated maturity; or any such Debt indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepaymentpayment or as a result of the voluntary sale or transfer of the property or assets) prior to the stated maturity date thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Navistar Financial Retail Receivables Corporation)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee, conservator, receiver, liquidator or similar official in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; Then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary Default shall not have been remedied, either the Indenture Trustee or secondary party) if the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferors which would permit the Transferors at their option to forgive acquire the payment of principal or interest Notes on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferors shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferors exercise such right of first refusal, the Transferors shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or information of any kind which the Trustee or 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 designeeinterests. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances shall pay to the related Obligors Indenture Trustee and direct that payments be made directly 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 the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment 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 all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the IssuerSeries Enhancer with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 Funding 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made under or given by the terms of this Indenture or any of Servicer, as the other Transaction Documents to which it is a party; orcase may be;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Noteholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder Issuer (or the Insurer; assignment by the Servicer of its duties without (i) an express assumption Indenture Trustee on behalf of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orIssuer);
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Issuer or Noteholders and which continues to be incorrect in any material respect when madefor 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 Issuer; or
(d) an Insolvency Event with respect to the Servicer shall become subject 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 an Insolvency Event; or
the Issuer (e) a final judgment is rendered against “Termination Notice”), terminate all of the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Issuer pursuant to Section 10.025.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee Issuer is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee Issuer and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections Table of Contents which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor ServicerInsurance Proceeds, such assistance to include, without limitation, Recoveries and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Issuer. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 5.01(a) for a period of 10 additional Business Days or under subsection 5.01(b) or (c) for a period of 60 additional Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its designee. At any time following best efforts to perform its obligations in a Termination Notice:
(1) The timely manner in accordance with the terms of this Agreement and the Servicer shall, at shall provide the Trustee's request and at Issuer with an Officer’s Certificate of the Servicer's expense, give Servicer giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer cause of such failure or delay and Noteholder hereby authorizes its efforts so to perform its obligations. For the Trustee to take any and all steps in the Issuer's name and on behalf avoidance of the Issuer and the Noteholders necessary or desirabledoubt, in the determination of a Servicer Default shall be based solely on the Trustee, to collect all amounts due under any provisions in this Section 5.01 and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections occurrence of a material instance of noncompliance with the applicable servicing criteria specified in respect Item 1122(d) of such Acquired Advances and enforcing such Acquired AdvancesRegulations AB shall not be determinative that a Servicer Default has occurred.
Appears in 1 contract
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before into the date such paymentCollection Account (including, transfer or deposit is without limitation, with respect to bifurcation and remittance of Collections) as required to be made under the terms by this Agreement which continues unremedied for a period of this Indenture or any of the other Transaction Documents to which it is a party; ortwo 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 Indenture Agreement or any of the other Transaction Documents to which it the Servicer is a partyparty (including, which failure without limitation, any material delegation of the Servicer’s duties that is not permitted by Section 6.1) and the same continues unremedied for a period of ten 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeAdministrative Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(c) the failure of the Servicer to make any payment when due (after giving effect to any related grace period) with respect to any recourse debt or other obligations, which debt or other obligations are in excess of United States $5,000,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such recourse debt or other obligations, whether or not waived;
(d) an Insolvency Event shall occur with respect to the Servicer;
(e) the Servicer fails in any material respect to comply with the Credit and Collection Policy and the Servicing Standard regarding the servicing of the Collateral and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;
(f) [Reserved]
(g) the Servicer consents or agrees to, or otherwise permits to occur, under circumstances in which the Servicer could have reasonably prevented the occurrence thereof, any material amendment, modification, change, supplement or rescission (any of the foregoing an “amendment” for purposes of this Section 6.18(g)) of or to the Servicer Credit and Collection Policy (after the adoption of same) in whole or in part that could have a Material Adverse Effect on the Collateral, the Administrative Agent 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 Trustee Administrative Agent shall not have delivered a written consent thereto during such ten Business Day period; provided, however, that such prior written consent shall not be required in the case of an amendment which was mandated by any Noteholder Applicable Law or Governmental Authority;
(h) the Insurer; assignment Company or an Affiliate thereof shall cease to be 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, as increased by (i) 80% of the proceeds of any equity offerings of the Company consummated after the Closing Date, and (ii) 50% of cumulative positive net income earned by the Company after the Closing Date;
(k) any failure by the Servicer of its duties without (i) an express assumption of to deliver any required Servicing Report or other Required Reports hereunder on or before the Servicer's obligations hereunder by date occurring two Business Days after the date such assigneereport is required to be made or given, (ii) to as the extent the Servicer is the Originatorcase may be, continued performance of its obligations under the Purchase and Contribution terms of this Agreement, and/or (iii) rating agency consent; or;
(cl) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) , which has a Material Adverse Effect on the Servicer shall become subject Administrative Agent or the Secured Parties and which continues to an Insolvency Event; or
(e) be unremedied for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within period of 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration earlier to occur of any such stay, such judgment is not discharged; or
(fi) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Administrative Agent or any Affiliate the Trustee and (ii) the date on which a Responsible Officer of the Servicer shall fail to pay acquires knowledge thereof;
(m) [Reserved];
(n) any principal financial or other information reasonably requested by the Administrative Agent, the Liquidity Bank or the Lender is not provided as requested within a reasonable amount of or premium or interest on any Debt for which time following such request;
(o) the rendering against the Servicer is liable (whether as a primary of one or secondary party) if more final judgments, decrees or orders for the aggregate principal amount payment of money in excess of United States $7,500,000, individually or in the aggregate, and the continuance of such Debt is $250,000 judgment, decree or more, when order unsatisfied and in effect for any period of more than 60 consecutive days without a stay of execution;
(p) any change in the same becomes due and payable management of the Servicer (whether by scheduled maturityresignation, required prepaymenttermination, accelerationdisability, demand death or otherwiselack of day to day management) and such failure shall continue after the applicable grace period, if any, specified which would result in the agreement failure of at least three of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or instrument relating ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other eventprovide active and material participation in the Servicer’s daily activities including, shall occur but not limited to, general management, underwriting, and shall continue the credit approval process and credit monitoring activities, which no later than 60 days after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from above is not cured by the Servicer that hiring or appointing an existing employee who is a reputable, experienced individual reasonably satisfactory to the Servicer Administrative Agent to replace the Person who is no longer able to discharge its duties under this Indenture or (B) shall determine, actively participating in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the management of the Servicer (1) has experienced a material adverse change or which is not waived in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default writing by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, Administrative Agent; provided, however, that time relating to an individual’s vacation within the Control Party Servicer’s employee policy and customary industry standards shall not constitute lack of 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 Servicer that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.5(b);
(r) [Reserved]
(s) [Reserved]; then notwithstanding anything herein to the contrary, so long as any such Servicer Default shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to within any subsequent or other default or impair any right consequent thereon except applicable cure period prior to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass Termination Notice (defined below), the Administrative Agent, by written notice to and be vested in such Successor the Servicer (with a "Service Transfer"copy to the Trustee) (a “Servicer Termination Notice”); and, without limitation, may terminate all of the Trustee is hereby authorized, empowered rights and instructed (upon the failure obligations 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesAgreement.
Appears in 1 contract
Sources: Secured Loan and Servicing Agreement (NewStar Financial, Inc.)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or conservator or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) 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 Affiliate 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 fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; Then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary Default shall not have been remedied, either the Indenture Trustee or secondary party) if the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "Termination ----------- Notice"), may terminate all but not less than all the rights and obligations of ------ the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferor which would permit the Transferor at its option to forgive acquire the payment of principal or interest Noteholders' Collateral on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Noteholders' Collateral shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 P.M., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); and, ---------------- without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment 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 all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the IssuerSeries Enhancer with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Household Credit Card Master Note Trust I)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Section 4.5 or to make a drawing under any Letter of Credit on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a partySupplement; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of Supplement which has a material adverse effect on the other Transaction Documents to which it is a partyCertificateholders, which failure continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consentexcept as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or Agreement, any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Aggregate Investor Amount, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of Servicer, if Servicer shall fail to proceed promptly to cure the same and thereafter prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject to an Insolvency Event; or
(eof) any proceeding provided for by any Debtor Relief Law, other than as a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 30 90 days after entry thereofits filing; then, so long as such judgment is Servicer Default shall not discharged or execution thereof stayed pending appealhave been remedied, either the Trustee, or within 10 days after the expiration Holders of any such stayInvestor Certificates evidencing Undivided Interests aggregating not less than 51% of the Aggregate Investor Amount, such judgment is not discharged; or
(f) by notice then given in writing to the Servicer or any Affiliate (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail as Servicer under this Agreement and in and to pay any principal of or premium or interest on any Debt for which the Servicer is liable Receivables and the proceeds thereof (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due other than its rights and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace periodinterest, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate as Holder of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties Exchangeable Certificate under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire servicesAgreement), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other accountthe Finance Charge Account or, the Principal Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interest. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations, within five Business Days if any, under the Letter of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available Credit to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (JCP Receivables Inc)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or notice to the date Trustee to make such payment, transfer or deposit or to give notice to the Trustee as to any re- quired drawing or payment under any Enhancement on or before the date occurring five Business Days after the date such payment, transfer, deposit or drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any Supplement; provided, however, that any such failure caused by a non willful act of the other Transaction Documents to which it is Servicer shall not constitute a partyServicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents to which it is a partySup- plement, which failure has a material adverse effect on the Certificateholders of any Series then outstanding (with- out regard to the amount of any Enhancement) and which continues unremedied for a period of ten 60 days after the date on which the written notice thereof, requiring of such failure requir- ing the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidenc- ing Undivided Interests aggregating not less than 50% of the Invested Amount of any Noteholder Series materially adversely affected thereby, and which continues to materially ad- versely affect the rights of the Holders of Investor Certificates of such Series (without regard to the amount of any Enhancement) for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consentexcept as permitted by Section 8.7; or
(c) any representation, warranty or certification certifica- tion made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Sup- plement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders of any Series then outstanding (without regard to the amount of any Enhancement) and which continues to be incorrect in any material respect when madeand 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 of such failure, requiring the same to be reme- died, shall have been given to the Servicer by the Trust- ee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Invested Amount of any Series adversely affected thereby; or
or (d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appoint- ment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undis- charged or unstayed for a period of 60 days; or the Servicer shall fail admit in writing its inability to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether its debts generally as they become due, file a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating petition to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence take advantage of any Wind Down Event specified in Section 9.01(l) applicable insolvency or (p)reorgani- zation statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(h) then, so long as such Servicer Default shall not have been remedied, either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice from the Servicer that the Servicer is no longer able then given in writing to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificate- holders) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture"Termination Notice"), or (3) has ceased to conduct its business in may terminate all of the ordinary course; or
(i) rights and obligations of the Servicer shall fail as Servicer under this Agreement and in and to comply in the Receivables and the proceeds thereof and appoint a new Servicer (a "Ser- vice Transfer"). The rights and interests of the Trans- feror Interest will not be affected by any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultService Trans- fer. The Trustee, the Control Party may among other things, declare an Event of Default, deliver upon giving or receiving a Termination Notice to the Servicer and effect shall immediately notify each Rating Agency as- signing a Service Transfer. The Control Party may waive rating for any default by the Issuer or the Servicer in the performance class of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment Investor Certificates of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, then outstanding Series and any Enhancement Pro- vider of such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivednotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant by the Trustee pursu- ant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, take all reasonable actions to cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Recoveries. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receiv- ▇▇▇▇▇ to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reason- ably 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 Succes- sor Servicer shall be required to enter into such custom- ary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of 10 Business Days after the applicable grace period or under subsection 10.1(b) or (c) for a period of 60 Business Days after the applicable grace period shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, swarms of locusts or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sen- tence shall not relieve the Servicer fails from using its best reasonable efforts to provide perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Enhancement Provider, the Transferor and all Acquired Advances, including, without limitation, endorsing the IssuerHolders of Investor Certificates with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances failure or delay by it, together with a description of the cause of such failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Nordstrom Inc)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the related Trustee required pursuant to Section 3.04(g)(vi) on or before for deposit in any of the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee Accounts or the Insurer, (ii) Certificate Distribution Account any required payment or to deliver any other information or reports to direct the Indenture Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partydistributions therefrom, which failure continues unremedied for a period of ten days three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee, related Trustee or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent Servicer and to the Trustees by the Holders of Notes, evidencing not less than 25% of the Outstanding Amount of the Notes;
(b) failure by the Servicer (or so long as the Servicer is AHFC, the OriginatorSeller) 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, continued performance the Seller) set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of its obligations under Certificateholders or Noteholders and (ii) continue unremedied for a period of 90 days after the Purchase 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 related Trustee or (B) to the Servicer or the Seller (as the case may be), and Contribution Agreementto the related Trustee by the Holders of Notes, and/or (iii) rating agency consentevidencing not less than 25% of the Outstanding Amount of the Notes; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down an Insolvency Event specified with respect to the Seller or the Servicer; then, and in Section 9.01(l) or (p); or
(h) each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Insurer Holders of Notes evidencing not less than 25% of the Outstanding Amount of the Notes (Aor, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) shall receive by notice from the Servicer that the Servicer is no longer able then given in writing to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Indenture Trustee and the Owner Trustee if given by the Noteholders) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material may terminate all the rights and obligations (other than those included the obligations set forth in this Indenture), Section 6.02 that accrued on or (3prior to the effective date of the termination) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal Agreement. On or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on after the date that a Successor Servicer shall have been appointed pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Indenture 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, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in 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 cooperate, at its expense, shall cooperate with the Trustee and such Successor Servicer and the Trustees in (i) effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including, without limitation, 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 Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the predecessor Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to predecessor Servicer, in the Collection Account, Accounts or any other account, the Certificate Distribution Account or which shall thereafter be received with respect to the Acquired Advances, Receivables and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected Payments Ahead that shall at that time by held by the Successor Servicer to verify collection records predecessor Servicer. All reasonable costs and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records expenses (including computer tapes servicer conversion costs 50 and discs), which evidence attorneys' fees) incurred in connection with transferring the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the Trustee, and, promptly predecessor Servicer upon receipt, remit all presentation of reasonable documentation of such cash, checks costs and instruments to expenses. Any costs or expenses incurred in connection with a Servicer Default shall constitute an expense of administration under Title 11 of the Successor Servicer United States Bankruptcy Code or the Trustee any other applicable Federal or its designeeState bankruptcy laws. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give Upon receipt of notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the occurrence of a Servicer fails to provide the notice to Obligors required in paragraph (1) aboveDefault, the Indenture Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly shall give notice thereof to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advanceseach Rating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (American Honda Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to Lender or Lockbox Bank to make such payment, transfer or deposit on or before the date occurring three (3) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Servicing Agreement or any of the other Transaction Documents to which it is a party; orOrigination Agreement;
(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 Indenture Servicing Agreement or any of in the other Transaction Documents to Origination Agreement and which it is a party, which failure continues unremedied for a period of ten twenty (20) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Lender; or Servicer shall assign or delegate its duties under this Servicing Agreement, except as permitted by Section 7.05;
(c) any representation, warranty or certification made by Servicer in this Servicing Agreement, the Origination Agreement, or in any certificate delivered pursuant to this Servicing Agreement or the Origination Agreement shall prove to have been materially incorrect when made, which, if capable of being remedied, continues for a period of twenty (20) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orLender;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to 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 or any of its Affiliates affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of sixty (60) days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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
then, in the event of any Servicer Default, Lender by notice then given to Servicer (e) a final judgment is rendered against “Termination Notice”), may terminate all but not less than all of the Originator while acting rights and obligations of Servicer as Servicer under this Servicing Agreement and appoint a Successor Servicer; provided, however, that, at Lender’s sole option, this Servicing Agreement shall remain in an amount greater than $1,000,000 andfull force and effect with respect to all, within 30 days after entry thereofor a portion of, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) Loans originated prior to the stated maturity thereof; or
(g) if date of the Termination Notice that Servicer is servicing at the Originator or an Affiliate time of the OriginatorTermination Notice, in which event this Servicing Agreement shall remain in full force and effect with respect to such Loans only. From and after the delivery of the Termination Notice, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) Performance Fee and Servicing Fee due to Servicer under Article III shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
reduced by (i) the commercially reasonable servicing fee in accordance with Section 4.02(b) of this Servicing Agreement paid by Lender to the Successor Servicer shall fail plus (ii) all reasonably foreseeable damages (including all reasonable out-of-pocket costs and expenses (including attorneys’ fees)) incurred by Lender by reason of such Servicer Default (the amounts described in this clause (ii) referred to comply in any material respect with as “Ancillary Lender Damages”), but the Credit remainder of the Performance Fee and Collection Policy Servicing Fee (in the performance case of its duties hereunder; Following the occurrence of a Servicer DefaultServicing Fee, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice calculated only with respect to the Servicer and effect a Service Transfer. The Control Party may waive any default then outstanding Loans actually serviced by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default Servicer) shall be deemed paid to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedServicer as contemplated by Article III. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by Lender pursuant to Section 10.024.02, all authority and power of the Servicer under this Indenture Servicing Agreement, except for the right to receive payment under Section 4.02(b) reduced by (i) the servicing fee paid by Lender to the Successor Servicer (or, if Lender is the Successor Servicer, by the reasonable amount that Lender would have to pay to an independent Successor Servicer in an arms’ length transaction), shall pass to and be vested in such the Successor Servicer (a "“Service Transfer")”) plus (ii) all other Ancillary Lender Damages; and, without limitation, the Trustee Lender is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee Lender and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Loans provided for under this IndentureServicing Agreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by Servicer in the Servicer to the Collection Account, or any other accountLockbox, or which shall thereafter be received with respect to the Acquired AdvancesLoans, and (ii) in assisting the Successor Servicer. Servicer until all servicing activities have been transferred to shall also complete such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by transfer of its rights under the Program Agreements as may be necessary for the Successor Servicer to verify collection adequately perform its duties and obligations under this Servicing Agreement; but otherwise, Servicer shall remain obligated under and shall continue to perform its duties and obligations under the Program Agreements. Servicer shall within ten (10) Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Loans to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit continued servicing and enforcement of the Loans in the manner and at such times as the Successor Servicer shall reasonably request. The Servicer shall be responsible for all such cash, checks and instruments expenses incurred in transferring the servicing duties to the Successor Servicer. To the extent that compliance with this Section shall require Servicer to disclose to the Successor Servicer information of any kind which Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary confidentiality agreements as Servicer shall deem reasonably necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for a period of ten (10) Business Days after the applicable grace period or (ii) under paragraph (b) or (c) above for a period of fifteen (15) Business Days after the applicable grace period, if such delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its designee. At any time following obligations in a Termination Notice:
(1) The timely manner in accordance with the terms of this Servicing Agreement and Servicer shall, at the Trustee's request and at the Servicer's expense, give shall provide Lender with an Officer’s Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances such failure or delay by it, together with a description of its efforts so to the related Obligors and direct that payments be made directly to the Trustee or perform its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 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 Servicer, the Owner Trustee, the Indenture Trustee and the Trustee by any Noteholder or the Insurer; assignment applicable Collateral Agent by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, Classes or Tranches, not less than 50% of the Servicer in this Indenture aggregate unpaid principal amount of all Series, Classes or any other Transaction Document Tranches to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against the Originator while acting as any other Servicer Default described in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; orIndenture Supplement.
(fa) the to act as a Successor Servicer or any Affiliate and receives an Officer's Certificate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe cannot in good faith to be reliable, that cure the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased Default which gave rise to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTermination Notice, the Control Party may among other things, declare an Event Indenture Trustee shall assume the role of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); ) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Collateral provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other accountAccount for the applicable Asset Pool, or which shall thereafter be received with respect to the Acquired AdvancesCollateral, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting 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 making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Collateral in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Owner Trustee, to collect all amounts due under any the applicable Collateral Agent and all Acquired Advances, including, without limitation, endorsing the Issuereach Transferor with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Bank One Delaware National Association)
Servicer Defaults. If any one of the following events (each being subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 later of (i) the date occurring 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement, or any (ii) three Business Days after written notice of such failure shall have been given to the other Transaction Documents to which it is a party; orServicer;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the unpaid Initial Investor Interest of any Noteholder Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the unpaid Initial Investor Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied or interest on any Debt for which waived, either the Servicer is liable (whether as a primary Trustee, or secondary party) if the Holders of Investor Certificates evidencing more than 50% of the aggregate principal amount unpaid Initial Investor Interests of such Debt is $250,000 or moreall outstanding Series, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified notice then given in the agreement or instrument relating writing to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificateholders) has experienced (a material adverse change in its business"Termination Notice"), assets, liabilities, operations, or financial condition, (2) has defaulted on any may terminate all of its material the rights and obligations (other than those included in this Indenture), unsatisfied obligations for acts or (3omissions during its tenure as Servicer) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a as Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, the Finance Charge Account or the Principal Account and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. The Servicer being terminated shall bear all costs of such a Service Transfer, including but not limited to those of the Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (Ac) assemble for a period of 60 days, shall not constitute a Servicer Default if such documentsdelay 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, instruments and other records (including computer tapes and discs)acts of declared or undeclared war, which evidence public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Acquired Advances Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and Servicer 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and provide the Trustee, andany Enhancement Provider, promptly upon receipt, remit all such cash, checks the Transferor and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeHolders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bankcard Master Credit Card Trust)
Servicer Defaults. If any one Any of the following events (each being shall constitute a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any in its capacity as Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of by this Indenture or any of the other Transaction Documents Document to be made by it or to give instructions or to give notice to the Trustee, the Administrative Agent, or the Paying Agent (if other than the Administrative Agent) to make such payment, transfer or deposit, which it is a party; orfailure continues unremedied (A) in the case of payments of interest on the Notes, for five Business Days and (B) in the case of all payments not included in CLAUSE (A) above, for seven Business Days after the date on which an Authorized Officer of the Servicer has actual knowledge of such failure;
(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 Indenture or any of the other Transaction Documents to which it is a partyDocument, which failure has a material adverse effect on the Noteholders of any Series of Notes and continues unremedied for a period of ten 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 TrusteeTrustee or the Administrative Agent, or to the Servicer Servicer, the Trustee, and the Trustee Administrative Agent by any Noteholder or the Insurer; assignment by Noteholder;
(c) the Servicer of shall assign its duties without (i) an express assumption of the Servicer's obligations hereunder by such assigneeunder this Indenture, (ii) except for delegations to the extent the Servicer is the Originator, continued performance of its obligations Sub-Servicers contemplated under the Purchase Agreement or as permitted by SECTIONS 3.01(c) and Contribution Agreement, and/or (iii) rating agency consent; or8.03;
(cd) any representation, warranty or certification made by the Servicer in this Indenture hereunder or under any of the other Transaction Document to which it is a party or in any certificate or other document or instrument delivered pursuant to this Indenture or any of the other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) made or delivered and which has a material adverse effect on the Noteholders of any Series of Notes which material adverse effect continues unremedied for a period of 30 days after the date on which written notice of such circumstance, requiring the same to be remedied, shall have been given to the Servicer shall become subject by the Trustee or the Administrative Agent, or to an Insolvency Eventthe Servicer, the Trustee, and the Administrative Agent by any Noteholder; or
(e) a final judgment is rendered against any Event of Bankruptcy shall occur with respect to the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after Servicer. Upon the expiration occurrence and during the continuance of any such stayServicer Default or any Event of Default, such judgment is the Trustee, at the direction of the Majority Noteholders, shall, by notice then given in writing to the Servicer (a "TERMINATION NOTICE"), terminate all (but not discharged; or
(fless than all) the Servicer or any Affiliate rights and obligations of the Servicer shall fail as Servicer under this Indenture and in and to pay the Receivables, the Related Transferred Assets and the proceeds thereof. As soon as possible, and in any principal event within five Business Days, after an Authorized Officer of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if has obtained knowledge of the aggregate principal amount occurrence of any Servicer Default, the Servicer shall furnish notice thereof to the Trustee, the Administrative Agent, and the Applicable Rating Agencies, and the Issuer and the Administrative Agent shall promptly upon receipt of such Debt is $250,000 notice furnish notice thereof to each Noteholder. Notwithstanding the foregoing, a delay in or more, when the same becomes due and payable failure in performance referred to in SUBSECTION (whether by scheduled maturity, required prepayment, acceleration, demand or otherwisea) and such failure shall continue above for a period of 10 Business Days after the applicable grace period, if any, specified or in the agreement SUBSECTION (b) or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue (d) above for a period of 30 Business Days after the applicable grace period, shall not (unless such delay or failure continues after such 10 or 30 Business Day period, as applicable) constitute a Servicer Default if any, specified in such agreement delay or instrument if failure could not have been prevented by the effect exercise of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than reasonable diligence by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is and such delay or failure was caused by an act of God or the Originator public enemy, riots, acts of war, acts of terrorism, epidemics, flood, embargoes, weather, landslides, fire, earthquakes or an Affiliate 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 hereof and of the Originatorother Transaction Documents, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and promptly give the Trustee, andthe Administrative Agent, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issueran Officer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificate notifying them of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it.
Appears in 1 contract
Sources: Master Trust Indenture and Security Agreement (Stone Container Corp)
Servicer Defaults. If The happening of any one or more of the following events (each being shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer (i) Servicers to deliver make any information to the Trustee required pursuant to Section 3.04(g)(vi) on payment, deposit, advance or before the date such information is transfer of funds required to be given paid, deposited, advanced or transferred under the terms of this Indenture Agreement, and such failure shall remain continues unremedied for three five (5) Business Days after written notice from discovery by the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms Servicers of this Indenture and such failure shall (in or receipt by the case Servicers of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date of such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orfailure;
(b) any failure Failure on the part of the Servicer Servicers duly to observe or perform in any other material respect any of the covenants or agreements contained in this Agreement or the Supervisory Servicing Agreement which continues unremedied for thirty (30) days after the earlier to occur of the Servicers obtaining actual knowledge of such failure or the Servicers' receipt of written notice of such failure or breach as the case may be; provided, 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 set forth in this Indenture or any Default hereunder if within such 30-day period the Servicers give notice to the Trustee and the Supervisory Servicer of the other Transaction Documents corrective action it proposes to which it is a partytake, which failure continues unremedied corrective action is agreed in writing by the Trustee to be satisfactory and the Servicers shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days;
(c) A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of ten days after ninety (90) days;
(d) A Servicer shall consent to the date on which written notice thereofappointment of a conservator or receiver or liquidator in any insolvency, requiring 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 insolvency or reorganization statute, make an assignment for the same benefit of its creditors or voluntarily suspend payments of its obligations;
(f) A Servicer shall cease to be remediedan Eligible Servicer;
(g) A material adverse change occurs in the financial condition of a Servicer, shall have been given to which change materially impairs the ability of the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of perform its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; or
(ch) any representation, Any representation or warranty or certification made by the a Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove proves to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, effect on the Noteholders and which continues to have a material adverse effect or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply be incorrect in any material respect with for a period of thirty (30) days after written notice of such inaccuracy, requiring it to be remedied, has been given to the Credit and Collection Policy in Servicers by the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTrustee, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Supervisory Servicer and effect a Service Transfer. The Control Party may waive or any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, Noteholder; provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any if such waiver inaccuracy is of a past default, nature that it cannot be remedied within such default shall cease to exist, 30-day period and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant gives notices to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor the Supervisory Servicer in (i) effecting the termination of the responsibilities corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be satisfactory and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to shall thereafter pursue such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on corrective action diligently until such default is cured but in no event longer than ninety (90) days from the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesnotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being subject to the last paragraph of this Section 10.01, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 later of (i) the date occurring 10 Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement, or any (ii) three Business Days after written notice of such failure shall have been given to the other Transaction Documents to which it is a party; orServicer;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the unpaid Initial Investor Interest of any Noteholder Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.07;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the unpaid Initial Investor Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied or interest on any Debt for which waived, either the Servicer is liable (whether as a primary Trustee, or secondary party) if the Holders of Investor Certificates evidencing more than 50% of the aggregate principal amount unpaid Initial Investor Interests of such Debt is $250,000 or moreall outstanding Series, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified notice then given in the agreement or instrument relating writing to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificateholders) has experienced (a material adverse change in its business"Termination Notice"), assets, liabilities, operations, or financial condition, (2) has defaulted on any may terminate all of its material the rights and obligations (other than those included in this Indenture), unsatisfied obligations for acts or (3omissions during its tenure as Servicer) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a as Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, the Finance Charge Account or the Principal Account and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days rights and obligations under the Enhancement with respect to any Series to the Successor Servicer. The Servicer being terminated shall bear all costs of such a Service Transfer, including but not limited to those of the Trustee reasonably allocable to specific employees and overhead, legal fees and expenses, accounting and financial consulting fees and expenses, and costs of amending this Agreement, if necessary. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.01(a) for a period of 10 Business Days or under subsection 10.01(b) or (Ac) assemble for a period of 60 days, shall not constitute a Servicer Default if such documentsdelay 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, instruments and other records (including computer tapes and discs)acts of declared or undeclared war, which evidence public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Acquired Advances Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and Servicer 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and provide the Trustee, andany Enhancement Provider, promptly upon receipt, remit all such cash, checks the Transferor and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeHolders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bankcard Master Credit Card Trust)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 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 Servicer, the Owner Trustee, the Indenture Trustee and the Trustee by any Noteholder or the Insurer; assignment applicable Collateral Agent by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, Classes or Tranches, not less than 50% of the Servicer in this Indenture aggregate unpaid principal amount of all Series, Classes or any other Transaction Document Tranches to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against the Originator while acting as any other Servicer Default described in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; orIndenture Supplement;
(fa) the to act as a Successor Servicer or any Affiliate and receives an Officer's Certificate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe cannot in good faith to be reliable, that cure the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased Default which gave rise to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTermination Notice, the Control Party may among other things, declare an Event Indenture Trustee shall assume the role of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); ) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Collateral provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other accountAccount for the applicable Asset Pool, or which shall thereafter be received with respect to the Acquired AdvancesCollateral, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting 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 making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Collateral in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Owner Trustee, to collect all amounts due under any the applicable Collateral Agent and all Acquired Advances, including, without limitation, endorsing the Issuereach Transferor with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (each being a "“Servicer Default"”) shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or ACH Account to make such payment, transfer or deposit on or before the date occurring 3 Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Servicing Agreement, provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of the other Transaction Documents Servicer, such 3 Business Day period shall commence upon notice to which it is a party; orServicer from Lender;
(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 Indenture Servicing Agreement or any of in the other Transaction Documents to Loan Origination Agreement and which it is a party, which failure continues unremedied for a period of ten 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Lender;
(c) any representation, warranty or certification made by 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 a materially adverse effect on the Loans (taken as a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeLender; or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become due, 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; then, Lender, by notice given to Servicer (a “Termination Notice”), may terminate all, but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement and appoint a Successor Servicer, subject to an Insolvency Event; or
Section 4.02. Notwithstanding the foregoing, a delay in or failure of performance shall not constitute a Servicer Default (ei) under paragraph (a) above for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within period of 10 days Business Days after the expiration applicable grace period or (ii) under paragraph (b) or (c) above for a period of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue 15 Business Days after the applicable grace period, if anysuch delay or failure was caused by an act of God or the public enemy, specified acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other eventterms of this Servicing Agreement, and Servicer shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect provide Lender with prompt notice of such default failure or event is to acceleratedelay by it, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by together with a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any description of its material obligations (other than those included in this Indenture), or (3) has ceased efforts so to conduct perform its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to the terms of this Agreement or any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the interests hereunder of the other Transaction Documents to Investor Certificateholders of any Series or Class and which it is a party, which failure continues unremedied for a period of ten 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 Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.02, 8.07 or 13.08, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing more than 50% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orAggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect when madefor 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 more than 50% of the Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or 84 the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or moreDefault shall not have been remedied, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount, by notice from the Servicer that the Servicer is no longer able then given to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificateholders) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture"Termination Notice"), or (3) has ceased to conduct its business in may terminate all but not less than all the ordinary course; or
(i) rights and obligations of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a as Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall not have offer the Transferors the right at their option to forgive purchase the payment of principal or interest Certificateholders' Interest on any Note. Upon any such waiver the Distribution Date next succeeding 60 days after the receipt by the Servicer of a past defaultTermination Notice. The purchase price for the Certificateholders' Interest shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferors shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such option. If any of the Transferors exercise such option, such default Transferors shall cease (x) if short-term deposits or long-term unsecured debt obligations of the parent of such Transferors are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to existthe Trustee an Opinion of Counsel (which must be ▇▇ ▇▇▇▇pendent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Transferors have received reasonably equivalent value and any as to the solvency of such default Transferors, the purchase would not be considered a fraudulent transfer and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be deemed allocated and distributed to have been remedied for every purpose Investor Certificateholders in accordance with Article IV and the terms of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedeach Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.01(a) for a period of 5 Business Days or under subsection 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its respective obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or this Agreement and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer Supplement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any each Rating Agency, the Holders of the Transferor Certificates and all Acquired Advances, including, without limitation, endorsing the IssuerInvestor Certificateholders with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts to so perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Fleet Credit Card Master Trust Ii)
Servicer Defaults. If any one of the following events (each being a ----------------- "Servicer Default") shall occur and be continuing:continuing with respect to the Servicer: ----------------
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make 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 such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any Agreement, which failure is not cured within five Business Days after notice of such failure from the other Transaction Documents Trustee to which it is a party; orthe Servicer.
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, -------- however, that a "Servicer Default" shall not be deemed to have occurred if the ------- Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any Agreement (other than with respect to those specified in clause (b) above and with respect to clauses (viii), (ix) and (ix) under Section 3.3(a) hereof, to the extent the terms of the other Transaction Documents to which it is a party, Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of ten thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee;
(d) 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 a material adverse effect on the rights of the Investor Certificateholders of any Series and which 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party a "Servicer -------- ------- Default" shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of such Receivables during such period in accordance with the provisions of this Indenture. No such waiver Agreement;
(e) the Servicer shall extend consent to any subsequent the appointment of a conservator or receiver or liquidator or other default similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or impair any right consequent thereon except similar proceedings of or relating to the extent expressly Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, 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; then, in the event of any Servicer Default, so waivedlong as the Servicer Default shall not have been remedied, the Trustee, by notice then given in writing to the Servicer (a "Termination Notice"), may terminate all but not less than all ------------------ of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); ) and, without limitation, ---------------- the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such 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, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) aboveterms of this Agreement, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Agents, any Enhancement Providers, the Seller and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificateholders with an Officers' Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Deutsche Floorplan Receivables L P)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any other respect any of the covenants or agreements of the Servicer or Co-Servicer set forth in this Indenture Agreement or any Relevant Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Beneficiaries as a whole or of the Investor Beneficiaries of any Applicable Series and which it is a party, which failure continues unremedied for a period of ten 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 Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Co-Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Agreement to any other entity, except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries of any Applicable Series and continues to be incorrect in any material respect when made; for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series 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 affected for such period;
(d) the Servicer or any Co-Servicer shall become subject consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an Insolvency Event; ororder of the court is made for its winding-up, dissolution, administration or reorganisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration duly authorised officer of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Co-Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified admit in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer writing that the Servicer or such Co-Servicer is no longer able unable to discharge pay its duties under this Indenture debts as they fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer or such Co-Servicer makes a general assignment for the benefit of or a composition with its creditors or voluntarily suspends payment of its obligations with a view to the general readjustment or rescheduling of its indebtedness, then so long as such Servicer Default shall not have been remedied the Beneficiaries acting together or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that as the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(icase may be) the Servicer shall fail to comply Investor Beneficiaries representing in any material respect with aggregate more than 662/3% of the Credit and Collection Policy Aggregate Investor Interest, by notice then given in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default by or, if applicable, the Issuer or the Co-Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except (copied to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer Receivables Trustee) (a "Service TransferTERMINATION NOTICE"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure may terminate all of the Servicer to cooperate) to execute rights 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the Successor avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer compatible and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the extent necessary to effect exercise of reasonable diligence by the Service TransferServicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer shallor Co-Servicer from using 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, at its expenseif applicable, within five Business Days the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such Service Transferfailure or delay by it, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available to the Successor Servicer or the Trustee or its designee at together with a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice description of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Beneficiaries Servicing Agreement (Barclaycard Funding PLC)
Servicer Defaults. If any one Each of the following events (each being shall constitute a "“Servicer Default") shall occur and be continuing”:
(a) any failure by the Servicer (i) to deliver any information to the Indenture Trustee required pursuant to Section 3.04(g)(vi) on or before for deposit in any of the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee Designated Accounts or the Insurer, (ii) Lockbox Accounts any required payment or to deliver any other information or reports to direct the Indenture Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partydistributions therefrom, which failure continues unremedied for a period of ten three Business Days after the date when due;
(b) failure on the part of the Transferor or the Servicer to duly observe or perform any of their respective covenants or agreements set forth in the Purchase Agreement, this Agreement or any of the other Basic Documents which failure (i) materially and adversely affects the rights of the Beneficiaries, and (ii) continues unremedied for a period of 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 Transferor or the Servicer, as applicable, by the TrusteeIndenture Trustee (acting at the direction of the Control Party), or to the Servicer Transferor or the Servicer, as applicable, and the to either Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orControl Party;
(c) any representationthe entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, warranty receiver, liquidator or certification made by similar official for the Servicer in this Indenture Transferor or any other Transaction Document to which it is a party or the Servicer, in any certificate delivered pursuant to this Indenture bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any other Transaction Document to which it is such decree or order unstayed and in effect for a party shall prove to have been incorrect in any material respect when made; orperiod of 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 subject due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an Insolvency Event; orassignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the failure to distribute a final judgment is rendered against Servicer’s Certificate pursuant to the Originator while acting as Servicer in an amount greater than $1,000,000 and, terms of Section 3.10 or Section 5.08 within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days three Business Days after the expiration related Determination Date provided, however that a Servicer Default will not occur if such failure is cured within an additional two business days such exception to be limited to one time per 12 months during the life of any such stay, such judgment is not discharged; orthis 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 Affiliate other condition which, in each case, constitutes, in the reasonable discretion of the Control Party constitutes, 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 shall fail Default under this subsection (g);
(h) the first to pay any principal occur of or premium or interest on any Debt for which (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 liable neither waived pursuant to an unconditional waiver nor cured within 60 days (whether 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 primary or secondary party) if the aggregate principal amount result of an event of default, such Debt that any indebtedness due thereunder is $250,000 or more, when the same becomes due and payable (whether by scheduled prior to its stated maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated date of maturity thereof; orthereof or shall be unpaid on its maturity date;
(gi) a final judgment or judgments for the payment of money in excess of $5,000,000 in the aggregate against the Servicer and the same shall not be discharged (or provisions made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty days from the date of entry thereof and the Servicer shall not, within said period of sixty days, or within such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(j) the rolling three (3) month average of the Delinquency Ratio - Receivables exceeds 8.25%;
(k) the rolling three (3) month average of the Delinquency Ratio - Equipment Loans exceeds 3.00%;
(l) the rolling three (3) month average of the Dilution Ratio - Receivables exceeds 16.5%;
(m) the rolling three (3) month average of the Default Ratio - Receivables exceeds 6.00%;
(n) the rolling three (3) month average of the Default Ratio - Equipment Loans exceeds 1.50%;
(o) the Days Sales Outstanding - Receivables exceeds 110 days;
(p) if the Servicer is the Originator ALS or an Affiliate thereof is the Servicer, the breach by the Servicer of one or both of the Originator, the occurrence of any Wind Down Event specified covenants set forth in Section 9.01(l) or (p3.07(i); or
(hq) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determinebreach, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Defaultrespect, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held warranty made by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances this Agreement or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesBasic Documents.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Alliance Laundry Systems LLC)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or Agreement; provided, however, that any such failure caused by a non-willful act of the other Transaction Documents to which it is Servicer shall not constitute a party; orServicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Servicer's obligations hereunder by Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orInvestor Certificateholders for such period;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 period of 60 days after the expiration date on which written notice of any such stayfailure, such judgment is not discharged; or
(f) requiring the same to be remedied, shall have been given to the Servicer or any Affiliate of by the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerateTrustee, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default the Trustee by the Issuer or the Servicer in the performance Holders of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall Investor Certificates evidencing Undivided Interests aggregating not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power less than 50% of the Servicer under this Indenture shall pass Invested Amount of any Series materially adversely affected thereby and continues to and be vested in materially adversely affect such Successor Servicer (a "Service Transfer")Investor Certificateholders for such period; and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Green Tree Financial 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or ACH Account to make such payment, transfer or deposit on or before the date occurring 3 Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Servicing Agreement, provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of the other Transaction Documents Servicer, such 3 Business Day period shall commence upon notice to which it is a party; orServicer from Lender;
(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 Indenture Servicing Agreement or any of in the other Transaction Documents to Loan Origination Agreement and which it is a party, which failure continues unremedied for a period of ten 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Lender;
(c) any representation, warranty or certification made by 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 a materially adverse effect on the Loans (taken as a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeLender; or
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all its property, or an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become due, 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; then, Lender, by notice given to Servicer (a “Termination Notice”), may terminate all, but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement and appoint a Successor Servicer, subject to an Insolvency Event; orSection 4.02.
(e) Servicer alters its servicing practices in a final judgment is rendered against manner that has a material adverse effect on the Originator while acting as Loans, the ability of Servicer to perform its obligations under this Servicing Agreement, the Loan Origination Agreement or on the transactions contemplated hereunder in an amount greater than $1,000,000 andgeneral, within and which material adverse effect continues for a period of 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 calendar days after the expiration earlier of any (x) the date on which Servicer becomes aware of such stay, material adverse effect and (y) the date on which notice of such judgment is not discharged; ormaterial adverse effect shall have been given to Servicer by Lender.
(f) Servicer experiences a material deterioration in its financial condition such that Servicer is unable to fulfill its obligations under this Servicing Agreement in any material respect (such material deterioration in financial condition, a “Financial Condition Event”), and such Financial Condition Event continues unremedied for a period of 90 calendar days after the date of which notice of such Financial Condition Event shall either have given to Lender by Servicer or any Affiliate to Servicer by Lender. Notwithstanding the foregoing, a delay in or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 Business Days after the Servicer shall fail to pay any principal applicable grace period or (ii) under paragraph (b) or (c) above for a period of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue 15 Business Days after the applicable grace period, if anysuch delay or failure was caused by an act of God or the public enemy, specified acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other eventterms of this Servicing Agreement, and Servicer shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect provide Lender with prompt notice of such default failure or event is to acceleratedelay by it, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by together with a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any description of its material obligations (other than those included in this Indenture), or (3) has ceased efforts so to conduct perform its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to Trustee pursuant to Article IV or to instruct Trustee to make any required drawing, withdrawal, or payment under any Credit Enhancement on or before the date occurring ten Business Days after the date such payment, transfer transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a partyAgreement; or
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Holders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Investor Interest of any Noteholder Series adversely affected thereby and continue to materially adversely affect such Investor Holders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consentexcept as permitted by Section 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Holders of any Series and which continues to be incorrect in any material respect when madefor 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 Servicer by Trustee, or to Servicer and Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 25% of the Investor Interest of any Series adversely affected thereby and continues to materially adversely affect such Investor Holders for such period; or
or (d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appealof or relating to all or substantially all of its property, or within 10 days after a decree or order of a court or agency or supervisory authority having jurisdiction in the expiration premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidating of its affairs, shall have been entered against Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any such stayapplicable insolvency or reorganization statute, such judgment is not discharged; or
(f) make any assignment for the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any benefit of its material obligations (other than those included in this Indenture), creditors or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance voluntarily suspend payment of its duties hereunderobligations; Following the occurrence of a then, so long as such Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party Default shall not have been remedied, either Trustee, or the right Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Interest, by notice then given in writing to forgive Servicer (and to Trustee if given by the payment Investor Holders) (a "Termination Notice"), may terminate all of principal or interest on any Note. Upon any such waiver the rights and obligations of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of Servicer as Servicer under this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the and Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes purpose of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or the Finance Charge Account, the Excess Funding Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting Trust. Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require Servicer to disclose to the Successor Servicer or information of any kind which Servicer reasonably deems to be confidential, the Trustee or Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Servicer shall deem necessary to protect its designeeinterests. At any time following a Termination Notice:
(1) The Servicer shall, at on the date of any servicing transfer, transfer all of its rights and obligations under the Credit Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of 30 Business Days or under subsection 10.1(b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and Servicer shall provide Trustee, any Credit Enhancement Provider, Transferor and the Holders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts to so perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First National Bank of Commerce)
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 (i) to deliver any information to the Trustee required Agent any Monthly Settlement Report, Purchase Date/Spread Account Surplus Settlement Report or Commercial Paper Settlement Report pursuant to Section 3.04(g)(vi) 6.07 on or before the date such information delivery is required to be given due under the terms of this Indenture and such Agreement; or
(b) any failure shall remain unremedied for three Business Days after written notice from by the Trustee or the Insurer, (ii) Servicer to deliver any other information or reports to the Trustee Agent required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) 6.01 on or before the date such information, Servicer's Daily Report payment, transfer, deposit, instruction or Monthly Report notice is required to be made or given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain Agreement, which continues unremedied for ten a period of three Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit information is required to be made due under the terms of this Indenture or any of the other Transaction Documents to which it is a partyAgreement; or
(bc) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents related documents to which it is a party, party which failure continues unremedied for a period of ten days Business Days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer servicer by the TrusteeAgent, or to the Servicer and the Trustee Agent by any Noteholder the Purchaser; or the Insurer; assignment by the Servicer of shall assign its duties without (i) an express assumption under this Agreement or under any of the Servicer's obligations hereunder by such assigneeother related documents to which it is a party, (ii) to except as permitted in accordance with the extent the Servicer is the Originator, continued performance terms of its obligations under the Purchase Sections 8.02 and Contribution Agreement, and/or (iii) rating agency consent10.04; or
(cd) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document related document to which it is a party or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against The Seller or the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which in an amount in excess of $10,000 (with respect to the Servicer is liable (whether as a primary Seller) or secondary party) if the aggregate principal amount of such Debt is $250,000 or more(with respect to the Originator), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt in an amount in excess of $10,000 (with respect to the Seller) or $750,000 (with respect to the Originator) or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(gf) if a final judgment is rendered against the Servicer while acting as Servicer in an amount greater than $1,000,000 and, within 45 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 45 days after the Originator or an Affiliate of the Originator, the occurrence expiration of any Wind Down Event specified in Section 9.01(l) or (p)such stay, such judgment is not discharged; or
(hg) either the Trustee Agent or the Insurer Purchaser (Ai) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture Agreement or (Bii) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer Servicer: (1A) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2B) has defaulted on any of its material obligations (other than those included in this IndentureAgreement), or (3c) has ceased to conduct its business in the ordinary course; or
(i) the , then, so long as such Servicer Default shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Defaultnot have been remedied, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice Agent by notice given in writing to the Servicer (a "Servicer Termination Notice"), may terminate all of the rights and effect a Service Transfer. The Control Party may waive any default by the Issuer or obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any Agreement (such waiver of termination being herein called a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived"Servicer Transfer"). After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Standby Servicer or another Successor Servicer (a "Service Transfer")appointed pursuant to Section 8.02; and, without limitation, the Trustee Agent is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee Agent and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Purchased Receivables and related Purchased Assets provided for under this IndentureAgreement, including including, without limitation, all authority over all any Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve or withdrawal in a Lock-box Account or the IssuerAgent's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, Account or which shall thereafter be received by the Servicer with respect to the Acquired AdvancesPurchased Receivables, and (ii) in assisting the Successor Servicer until successor servicer in enforcing all servicing activities have been transferred to such Successor Servicer, such assistance to includerights under this Agreement including, without limitation, (x) assisting any accountants selected by allowing the Successor Servicer to verify collection records and reports made prior Servicer's personnel access to the Service Transfer and (y) assisting Servicer's premises for the purpose of collecting payments on the Purchased Assets made at such premises. The Servicer shall promptly transfer its electronic records relating to the Purchased Assets to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Purchased Assets in the manner and at such cash, checks and instruments to times as the Successor Servicer or the Trustee or its designeeshall reasonably request. At any time following a Termination Notice:
(1) The Servicer shall, at shall allow the Trustee's request and at Successor Servicer access to the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors officers and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesemployees.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Equivest Finance Inc)
Servicer Defaults. If The happening of any one or more of the following events (each being shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the either Servicer (i) to deliver make any information to the Trustee required pursuant to Section 3.04(g)(vi) on payment, deposit, advance or before the date such information is transfer of funds required to be given paid, deposited, advanced or transferred under the terms of this Indenture Agreement, and such failure shall remain continues unremedied for three Business Days five (5) days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date discovery by such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms Servicer of this Indenture and such failure shall (in the case or receipt by such Servicer of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date of such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orfailure;
(b) any failure Failure on the part of the either Servicer duly to observe or perform in any other material respect any of its respective covenants or agreements contained in this Agreement or the Supervisory Servicing Agreement which continues unremedied for thirty (30) days after the earlier to occur of the Servicer set forth in this Indenture obtaining actual knowledge of such failure or any the Servicer's receipt of written notice of such failure or breach as the case may be; provided, 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 Servicer gives notice to the Trustee and the Supervisory Servicer of the other Transaction Documents corrective action it proposes to which it is a partytake, which failure continues unremedied corrective action is agreed in writing by the Trustee to be satisfactory and the Servicer shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days after such notice is given;
(c) A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against a Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of ten days after ninety (90) days;
(d) A Servicer shall consent to the date on which written notice thereofappointment of a conservator or receiver or liquidator in any insolvency, requiring bankruptcy, 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 insolvency, bankruptcy or reorganization statute, make an assignment for the same benefit of its creditors or voluntarily suspend payments of its obligations;
(f) A Servicer shall cease to be remediedan Eligible Servicer;
(g) A material adverse change occurs in the financial condition of a Servicer, shall have been given to which change materially impairs the ability of the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of perform its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; or
(ch) any representation, Any representation or warranty or certification made by the a Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove proves to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, effect on the Noteholders and which continues to have a material adverse effect or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply be incorrect in any material respect with for a period of thirty (30) days after written notice of such inaccuracy, requiring it to be remedied, has been given to the Credit and Collection Policy in Servicers by the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTrustee, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Supervisory Servicer and effect a Service Transfer. The Control Party may waive or any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, Noteholder; provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any if such waiver inaccuracy is of a past default, nature that it cannot be remedied within such default shall cease to exist, 30-day period and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant gives notices to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor the Supervisory Servicer in (i) effecting the termination of the responsibilities corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be satisfactory and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to shall thereafter pursue such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on corrective action diligently until such default is cured but in no event longer than ninety (90) days from the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesnotice.
Appears in 1 contract
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 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 Servicer, the Owner Trustee, the Indenture Trustee and the Trustee by any Noteholder or the Insurer; assignment applicable Collateral Agent by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, Classes or Tranches, not less than 50% of the Servicer in this Indenture aggregate unpaid principal amount of all Series, Classes or any other Transaction Document Tranches to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification 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 subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against the Originator while acting as any other Servicer Default described in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; orIndenture Supplement.
(fa) the to act as a Successor Servicer or any Affiliate and receives an Officer's Certificate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe cannot in good faith to be reliable, that cure the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased Default which gave rise to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTermination Notice, the Control Party may among other things, declare an Event Indenture Trustee shall assume the role of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedSuccessor Servicer. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); ) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Collateral provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other accountAccount for the applicable Asset Pool, or which shall thereafter be received with respect to the Acquired AdvancesCollateral, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting 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 making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Collateral in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Owner Trustee, to collect all amounts due under any the applicable Collateral Agent and all Acquired Advances, including, without limitation, endorsing the Issuereach Transferor with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (each being a "Servicer Default") shall occur and be continuing:“Servicer
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee, the Indenture Trustee or the Collateral Agent or to the Servicer, the Owner Trustee, the Indenture Trustee and the Collateral Agent by Holders of Notes evidencing not less than 50% of the aggregate unpaid principal amount of all Series, Classes or Tranches of Notes sustaining such Adverse Effect; or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by 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 Collateral Agent, or to the Servicer Servicer, the Owner Trustee, the Indenture Trustee and the Trustee by any Noteholder or the Insurer; assignment Collateral Agent by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Series, Classes or Tranches of Notes to which such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orrelates;
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding- up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against the Originator while acting any other Servicer Default described in any Indenture Supplement; then, so long as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer Default shall not have been remedied, either the Indenture Trustee or any Affiliate the Holders of Notes evidencing more than 50% of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate unpaid principal amount of such Debt is $250,000 or moreall affected Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified notice then given in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, 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 Control Party shall Servicer cannot have in good faith cure the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Servicer Default which gave rise to the extent expressly so waivedTermination 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 shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"); ”) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Collateral provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesCollateral, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting 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 making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Collateral in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct Owner Trustee, the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer Collateral Agent and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Transferor with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (each being a ----------------- "Servicer Default") shall occur and be continuing:: -----------------
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Servicer's obligations hereunder by such assignee, Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer is the Originator, continued performance of shall delegate its obligations duties under the Purchase and Contribution this Agreement, and/or (iii) rating agency consentexcept as permitted by Section 8.7; or-----------
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Interest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture ------------ Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or the Excess Funding Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records Recoveries and reports made prior Interchange allocable to the Service Transfer and (y) assisting Trust. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in making such electronic form as the computer systems Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to ------------ disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Accounts and the Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer compatible to solely for the extent necessary to effect purposes of servicing the Service TransferAccounts and the Receivables. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments rights and other records (including computer tapes and discs), which evidence obligations under the Acquired Advances and the other Pledged Assets, and which are necessary or desirable Enhancement with respect to collect the Acquired Advances and shall make the same available any Series to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Bank Credit Card Master Trust)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to the terms of this Agreement or any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the interests hereunder of the other Transaction Documents to Investor Certificateholders of any Series or Class and which it is a party, which failure continues unremedied for a period of ten 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 Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing more than 50% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orAggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect when madefor 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 more than 50% of the Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or moreDefault shall not have been remedied, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount, by notice from then given to the Servicer (and to the Trustee 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 bids from Eligible Servicers in accordance with subsection 10.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall offer the Transferor the right at its option to purchase the Certificateholders' Interest on the Distribution Date next succeeding 60 days after the receipt by the Servicer of a Termination Notice. The purchase price for the Certificateholders' Interest shall be reliableequal to the sum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if it is exercising such option. If the Transferor exercises such option, the Transferor shall (x) if the Transferor's short-term deposits or long-term unsecured debt obligations are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any Receivables constitute fair value for consideration paid therefor and as to the solvency of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultTransferor, the Control Party may among other thingspurchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, declare an Event of DefaultNew York City time, deliver a Termination Notice to the Servicer and effect a Service Transferon such Distribution Date in immediately available funds. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default purchase price shall be deemed allocated and distributed to have been remedied for every purpose Investor Certificateholders in accordance with Article IV and the terms of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedeach Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.01(a) for a period of 5 Business Days or under subsections 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsections 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its respective obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or this Agreement and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer Supplement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any each Rating Agency, the Holders of the Transferor Certificates and all Acquired Advances, including, without limitation, endorsing the IssuerInvestor Certificateholders with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts to so perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Issuer Trustee or the Collateral Agent pursuant to Article IV or to make any required drawing, withdrawal, or payment under any Credit Enhancement, or to deliver any required Monthly Report hereunder on or before the date occurring two Business Days after the date such payment, transfer transfer, deposit, withdrawal or deposit drawing, or such instruction or notice or report is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a partyAgreement; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of Supplement which has a material adverse effect on the other Transaction Documents to which it is a partyNoteholders, which failure continues unremedied for a period of ten 30 days after the first to occur of (i) the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the TrusteeCollateral Agent, or to the Servicer and the Trustee Collateral Agent by any Noteholder the Noteholders or the Insurer; assignment by the Servicer Applicable Indenture Trustee on behalf of its duties without (i) an express assumption such Holders of Notes aggregating not less than 25% of the Servicer's obligations hereunder by such assignee, Principal Amount of any Series adversely affected thereby and (ii) to the extent date on which a Responsible Officer of the Servicer is the Originator, continued performance of its obligations under the Purchase becomes aware thereof and Contribution Agreement, and/or (iii) rating agency consentsuch failure continues to materially adversely affect such Noteholders for such period; or
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the Noteholders and which continues to be incorrect in any material respect when madefor a period of 30 days after the first to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer and the Issuer Trustee by the Collateral Agent, or to the Servicer, the Issuer Trustee and the Collateral Agent by the Noteholders or by the Applicable Indenture Trustee on behalf of Holders of Notes aggregating not less than 25% of the Principal Amount of any Series adversely affected thereby and (ii) the date on which a Responsible Officer of the Servicer becomes aware thereof, and such incorrectness continues to materially adversely affect such Holders for such period; or
(d) the Servicer shall become subject to an Insolvency EventEvent shall occur with respect to the Servicer; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on delegates any of its material obligations (other than those included in this Indenture)duties hereunder except to the extent such delegation is permitted hereunder and such delegation continues unremedied for 15 days; then, so long as such Servicer Default shall not have been remedied, either the Collateral Agent, or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultControlling Party, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice by written notice to the Servicer and effect a Service Transfer. The Control Party may waive any default the Issuer Trustee (and to the Collateral Agent and Credit Enhancers if given by the Issuer or Noteholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Collateral Agent pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee Collateral Agent is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in- fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Subject to Section 12.2(c), the Servicer agrees to cooperate, at its expense, cooperate with the Trustee Collateral Agent and such Successor Servicer in (i) 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 Acquired Advances as Trust Assets provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to the Servicer, in any Collection Account, Reserve Account or any other accountTermination Account, or which shall thereafter be received with respect to the Acquired AdvancesTrust Assets, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by Insurance Proceeds. The Servicer shall promptly transfer the Successor Servicer to verify collection Contract Files and its electronic records and reports made prior relating to the Service Transfer and (y) assisting Contracts in the Contract Pool to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Contracts in the Contract Pool in the manner and at such times as the Collateral Agent or the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interest. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations, within five Business Days if any, in respect of such Service Transferany Enhancement to the Successor Servicer. In connection with any servicing transfer, (A) assemble such documents, instruments all reasonable costs and other records expenses (including computer tapes and discs), which evidence reasonable attorneys' fees) incurred in connection with transferring the Acquired Advances Contracts in the Contract Pool and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Trust Assets to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Collateral Agent is acting as the Servicer, in which case the original Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days, or under subsection 10.1(b), (c) or (e) for a period of 60 days, in each case in addition to any grace period specified in such subsections, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications malfunction, computer malfunction or other electronic system malfunction or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Issuer Trustee, andthe Collateral Agent, promptly upon receiptthe Seller and certain providers of Credit Enhancement with an Officer's Certificate giving prompt notice of such failure or delay by it, remit all together with a description of the cause of such cash, checks failure or delay and instruments its efforts so to the Successor Servicer or the Trustee or perform its designeeobligations. At any time following a Termination Notice:
(1) The Servicer shall, at shall immediately notify the Trustee's request and at the Servicer's expense, give notice Collateral Agent in writing of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the any Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesDefault.
Appears in 1 contract
Sources: Pooling, Collateral Agency and Servicing Agreement (Newcourt Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to Indenture Trustee on or before the date occurring five Business Days after the date such payment, transfer transfer, deposit, or deposit such instruction or notice is required to be made or given by Servicer, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a partyIndenture Supplement; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement which has a material adverse effect on the Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any of the other Transaction Documents to which it is a partyEnhancement), which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any failure that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such failure relates); or Servicer shall delegate its duties under this Agreement except as permitted by Section 3.2 or 3.7, a Responsible Officer of Indenture Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee, or to the Servicer and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption Noteholders holding not less than 25% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentOutstanding Amount; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders of any Series or Class (which determination shall be made without regard to whether funds are then available pursuant to any Enhancement) and which continues to be incorrect in any material respect when made; 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 Servicer by Indenture Trustee, or to Servicer and Indenture Trustee by the Noteholders holding not less than 25% of the Outstanding Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 25% of the aggregate outstanding principal amount of all Series to which such representation, warranty or certification relates);
(d) the Servicer shall fail generally to, or admit in writing its inability to, pay its debts as they become subject 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 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 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 Servicer, of a voluntary case under any Debtor Relief Law, or such Person’s consent to the entry of an Insolvency Eventorder 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; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 andwith respect to any Series, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, other event specified in the agreement Indenture Supplement for such Series, then, in the event of any Servicer Default, so long as Servicer Default shall not have been remedied, either Indenture Trustee or instrument relating Noteholders holding more than 50% of the Outstanding Amount, by notice given to such Debt; or Servicer (and to Indenture Trustee and any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior Enhancement Provider entitled thereto pursuant to the stated maturity thereof; or
relevant Indenture Supplement if given by the Noteholders) (g) if a “Termination Notice”), may terminate all but not less than all the Servicer is the Originator or an Affiliate rights and obligations of the OriginatorServicer, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties as Servicer, under this Indenture or (B) shall determine, Agreement and in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in Receivables and the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following proceeds thereof. Upon the occurrence of a Servicer Default, the Control Party may among other things, declare an Event Indenture Trustee shall promptly notify each Rating Agency of such Servicer Default, deliver a Termination Notice to . After termination of the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations Servicer’s responsibilities under this Indenture and its consequences, provided, however, that the Control Party shall not have the right Agreement pursuant to forgive the payment of principal Section 4.1 or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice4.2, and on the date that a Successor Servicer shall have been appointed by Indenture Trustee pursuant to Section 10.024.3, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"”); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Indenture Trustee and such the Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such the Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 4.1 shall require Servicer to disclose to the Successor Servicer information of any kind which Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as Servicer shall deem appropriate to protect its interests. Notwithstanding the foregoing, any delay in or failure of performance under Section 4.1(a) for a period of five Business Days or under Section 4.1(b) or (c) for a period of 60 days (in addition to any period provided in Section 4.1(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from the obligation to use its designee. At best efforts to perform its obligations in a timely manner in accordance with this Agreement and Servicer shall provide Indenture Trustee, each Rating Agency, any time following a Termination Notice:
(1) The Servicer shall, at Enhancement Provider entitled thereto pursuant to the Trustee's request relevant Indenture Supplement and at the Servicer's expense, give Transferor with an Officer’s Certificate giving immediate notice of the Trustee's security interest in the Acquired Advances such failure or delay by it, together with a description of its efforts to the related Obligors and direct that payments be made directly to the Trustee or so perform its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Servicing Agreement (Bread Financial Holdings, Inc.)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or Agreement; provided, however, that any such failure caused by a non- willful act of the other Transaction Documents to which it is Servicer shall not constitute a party; orServicer Default if the Servicer promptly remedies such failure within five Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Servicer's obligations hereunder by Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orInvestor Certificateholders for such period;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or any other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or receiver or liquidator in any Affiliate bankruptcy proceeding or any other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, the Excess Funding Account, the Interest Funding Account or the Principal Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Receivables. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior or electronic copies thereof relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations under the Enhancement with respect to any Series to the Successor Servicer. In connection with any service transfer, within five Business Days of such Service Transferall reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the records, (A) assemble such documents, instruments correspondence and other records (including computer tapes and discs), which evidence documents with respect to the Acquired Advances Receivables and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Trust Property to the Successor Servicer and amending this Agreement to reflect such succession as Successor Servicer pursuant to this Section 10.1 and Section 10.2 shall be paid by the Servicer (unless the Trustee is acting as the Servicer on a temporary basis, in which case the original Servicer shall be responsible therefor) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, bank closings, communications outages, computer failure or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Trustee, andany Enhancement Provider, promptly upon receipt, remit all such cash, checks the Transferor and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeHolders of Investor Certificates with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Green Tree Financial 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Article IV on or before the date such payment, transfer transfer, deposit or deposit such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any Agreement, which failure continues unremedied for a period of the other Transaction Documents to which it is a party; orfive 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 Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of ten 60 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Certificates evidencing not less than 50% of the Servicer's obligations hereunder by Certificate Principal Balance and continues to materially adversely affect such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentCertificateholders for such period; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Certificateholders and which continues to be incorrect in any material respect when madefor a period of 30 days after the earlier of discovery by a Servicing Officer or the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of the Certificates evidencing not less than 50% of the Certificate Principal Balance and continues to materially adversely affect such Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default 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 writing to the Servicer (and to the Trustee if given by the Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.029.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, Account or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Receivables. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior or electronic copies thereof relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interests. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 9.1(a) for a period of 10 Business Days or under subsection 9.1(b) or (c) for a period of 60 Business Days in addition to any period provided in subsection 9.1(a), (b) or (c) shall not constitute a Servicer Default for such additional 10 or 60 Business Days if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages, communications outages, computer failure or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any the Transferor and all Acquired Advances, including, without limitation, endorsing the IssuerHolders of Certificates with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances failure or delay by it, together with a description of the cause of such failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or conservator or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) 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 Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or the Servicer shall fail admit in writing its inability to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether its debts generally as they become due, file a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating petition to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence take advantage of any Wind Down Event specified in Section 9.01(l) applicable bankruptcy, insolvency or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.reorganization statute,
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Associates Credit Card Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to the terms of this Agreement or any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the interests hereunder of the other Transaction Documents 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 it is a party, which failure continues unremedied for a period of ten 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 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 failure that does not relate to all Series, 25% of the aggregate unpaid principal amount of all Series to which such failure relates); the Servicer shall delegate its duties under this Agreement, except as permitted by Sections 8.2 and 8.7, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing not less than 25% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance aggregate unpaid principal amount of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orall Investor Certificates;
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party 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 when madefor 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, 25% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall fail generally to, or admit in writing its inability to, pay its debts as they become subject to an Insolvency Eventdue; or
(e) or a final judgment is rendered against proceeding shall have been instituted in a court having jurisdiction in the Originator while acting as premises seeking a decree or order for relief in respect of the Servicer in an amount greater than $1,000,000 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, within 30 days after entry thereofif instituted against the Servicer, any such judgment is not discharged proceeding shall continue undismissed or execution thereof stayed pending appealunstayed and in effect, for a period of 60 consecutive days, or within 10 days after any of the expiration 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 such stayof the foregoing actions; then, such judgment is not discharged; or
(f) in the event of any Servicer Default, so long as the Servicer or any Affiliate of the Servicer Default shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or morenot have been remedied, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing more than 50% of the aggregate unpaid principal amount of all Investor Certificates, by notice from the Servicer that the Servicer is no longer able given to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee and any Enhancement Provider entitled thereto pursuant to the relevant Supplement if given by the Investor Certificateholders) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture"Termination Notice"), or (3) has ceased to conduct its business may terminate all but not less than all the rights and obligations of the Servicer, as Servicer, under this Agreement and in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer Receivables and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee is unable to obtain any bids from Eligible Servicers in accordance with subsection 10.2(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall not have offer the Transferor the right at its option to forgive purchase the payment of principal or Certificateholders' Interest and the interest in the Trust Assets represented by any Participation on any Notethe Distribution Date occurring in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The purchase price for the Certificateholders' Interest shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee prior to the Record Date for the related Distribution Date of the purchase if it is exercising such option. If it exercises such option, the Transferor shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such the Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such the Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 appropriate to protect its interests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.1(a) for a period of five Business Days or under subsection 10.1(b) or (c) for a period of 60 days (in addition to any period provided in subsection 10.1(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional five Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from the obligation to provide use its best efforts to perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or this Agreement and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer Supplement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, each Rating Agency, any Enhancement Provider entitled thereto pursuant to collect all amounts due under any the relevant Supplement, the Holder of the Transferor Certificate and all Acquired Advances, including, without limitation, endorsing the IssuerInvestor Certificateholders with an Officer's name on checks and other instruments representing Collections in respect Certificate giving immediate notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts to so perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Target Receivables Corp)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the related Trustee required pursuant to Section 3.04(g)(vi) on or before for deposit in any of the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee Accounts or the Insurer, (ii) Certificate Distribution Account any required payment or to deliver any other information or reports to direct the Indenture Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partydistributions therefrom, which failure continues unremedied for a period of ten days three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee, related Trustee or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent Servicer and to the Trustees by the Holders of Notes, evidencing not less than 25% of the Outstanding Amount of the Notes;
(b) failure by the Servicer (or so long as the Servicer is AHFC, the OriginatorSeller) 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, continued performance the Seller) set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of its obligations under Certificateholders or Noteholders and (ii) continue unremedied for a period of 90 days after the Purchase 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 related Trustee or (B) to the Servicer or the Seller (as the case may be), and Contribution Agreementto the related Trustee by the Holders of Notes, and/or (iii) rating agency consent; orevidencing not less than 25% of the Outstanding Amount of the Notes;
(c) any representation, warranty the occurrence of an Insolvency Event with respect to the Seller or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeServicer; or
(d) any failure by the Servicer, any Subservicer or any Subcontractor to deliver any information, report, certification, attestation or accountants' letter when and as required (including, without limitation, any failure by the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against identify any Subcontractor "participating in the Originator while acting as Servicer in an amount greater than $1,000,000 andservicing function" within the meaning of Item 1122 of Regulation AB), within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 which continues unremedied for ten calendar days after the expiration of any date on which such stayinformation, such judgment is not discharged; or
(f) the Servicer report, certification or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or accountants' letter was required to be prepaid (delivered then, and in each and every case, other than by in the case of a regularly scheduled required prepaymentServicer Default set forth in clause (d) prior to the stated maturity thereof; or
(g) if above, so long as the Servicer is Default shall not have been remedied, either the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Indenture Trustee or the Insurer Holders of Notes evidencing not less than 25% of the Outstanding Amount of the Notes (Aor, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) shall receive by notice from then given in writing to the Servicer that and the Servicer is no longer able Owner Trustee (and to discharge its duties under this the Indenture or (BTrustee if given by the Noteholders) shall determine, in their respective reasonable judgment may terminate all the rights and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included the obligations set forth in this Indenture), Section 6.02 that accrued on or (3prior to the effective date of the termination) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply in any material respect with under this Agreement. In the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence case of a Servicer DefaultDefault set forth in clause (d) above, so long as the Servicer Default shall not have been remedied, the Control Party may among other thingsIssuer (or the Administrator, declare an Event acting on behalf of Defaultthe Issuer) shall be entitled to terminate, deliver a Termination Notice in its sole discretion, the rights and obligations of the Servicer as servicer under this Agreement; provided that to the Servicer and effect a Service Transfer. The Control Party may waive extent that any default by provision of this Agreement expressly provides for the Issuer survival of certain rights or obligations following termination of the Servicer in the performance of their obligations under this Indenture and its consequencesas servicer, such provision shall be given effect; provided, however, that the Control Party Issuer shall not have be entitled to terminate the right rights and obligations of the Servicer pursuant to forgive this section if a failure of the payment Servicer to identify a Subcontractor "participating in the servicing function" within the meaning of principal or interest on any Note. Upon any such waiver Item 1122 of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Regulation AB was attributable solely to the extent expressly so waivedrole or functions of such Subcontractor with respect to receivables other than the Receivables. After receipt by the Servicer of a Termination Notice, and on On or after the date that a Successor Servicer shall have been appointed pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Indenture 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, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in 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 cooperate, at its expense, shall cooperate with the Trustee and such Successor Servicer and the Trustees in (i) effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including, without limitation, 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 Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the predecessor Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to predecessor Servicer, in the Collection Account, Accounts or any other account, the Certificate Distribution Account or which shall thereafter be received with respect to the Acquired Advances, Receivables and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected Payments Ahead that shall at that time by held by the Successor Servicer to verify collection records predecessor Servicer. All reasonable costs and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records expenses (including computer tapes servicer conversion costs and discs), which evidence attorneys' fees) incurred in connection with transferring the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the Trustee, and, promptly predecessor Servicer upon receipt, remit all presentation of reasonable documentation of such cash, checks costs and instruments to expenses. Any costs or expenses incurred in connection with a Servicer Default shall constitute an expense of administration under Title 11 of the Successor Servicer United States Bankruptcy Code or the Trustee any other applicable Federal or its designeeState bankruptcy laws. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give Upon receipt of notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the occurrence of a Servicer fails to provide the notice to Obligors required in paragraph (1) aboveDefault, the Indenture Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly shall give notice thereof to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advanceseach Rating Agency.
Appears in 1 contract
Sources: Sale and Servicing Agreement (American Honda Receivables 2006-1 Owner Trust)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver make any information payment, transfer or deposit or to give instructions or notice to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer transfer, deposit or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any Supplement; provided, however, that any such failure caused by a nonwillful act of the other Transaction Documents to which it is Servicer shall not constitute a party; orServicer Default if the Servicer promptly remedies such failure within five (5) Business Days after receiving notice of such failure or otherwise becoming aware of such failure;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents to which it is a partySupplement, which failure has a material adverse effect on the Certificateholders of any Series then outstanding and which continues unremedied for a period of ten sixty (60) days after the date on which the written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Trustee or by Investor Certificateholders evidencing interests aggregating more than 66 2/3% of the Invested Amounts of all Series, and which continues to materially adversely affect the rights of the Holders of Investor Certificates of any Series; the Servicer shall delegate its duties under this Agreement, except as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Agreement or any Supplement or in any certificate delivered pursuant to this Agreement or any Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders of any Series then outstanding and which continues to be incorrect in any material respect and which continues to affect materially and adversely the rights of the Certificateholders of any Series for a period of sixty (60) days after the date on which written notice thereofof 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 any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance Invested Amount of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeSeries adversely affected thereby; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or the Servicer shall fail admit in writing its inability to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether its debts generally as they become due, file a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating petition to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence take advantage of any Wind Down Event specified in Section 9.01(l) applicable insolvency or (p)reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(h) then, so long as such Servicer Default shall not have been remedied, either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Invested Amount, by notice from the Servicer that the Servicer is no longer able then given in writing to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificateholders) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture"Termination Notice"), or (3) has ceased to conduct its business in may terminate all of the ordinary course; or
(i) rights and obligations of the Servicer shall fail to comply as Servicer under this Agreement and in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Receivables and the proceeds thereof and appoint a new Servicer (a "Service Transfer"). The rights and effect a interests of the Transferor Interest will not be affected by any Service Transfer. The Control Party may waive any default by Trustee, upon giving or receiving a Termination Notice shall immediately notify the Issuer or the Servicer in the performance Rating Agencies of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivednotice. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Recoveries. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 10.1(a) for a period of ten (10) Business Days after the applicable grace period or under Section 10.1(b) or (c) for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Enhancement Provider, the Transferor and all Acquired Advances, including, without limitation, endorsing the IssuerHolders of Investor Certificates with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances failure or delay by it, together with a description of the cause of such failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations. The Servicer shall immediately notify the Trustee in writing of any Servicer Default.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (Yamaha Motor Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit by the date such payment, transfer or deposit or instruction or notice is required to be made under the terms of this Servicing Agreement or the Indenture, and which continues unremedied for a period of five (5) Business Days after the date on which notice of such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer, any of Co-Issuer, any Loan Trustee, the other Transaction Documents to which it is a partyPaying Agent and the Indenture Trustee by the Required Noteholders; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture Servicing Agreement or any of the other Transaction Documents to which it is a partyIndenture, which failure has a material adverse effect on the interests of the Noteholders (as determined by the Required Noteholders), and which continues unremedied for a period of ten sixty (60) days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given by registered or certified mail to the Servicer by any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentRequired Noteholders; or
(c) any representation, warranty or certification made by the Servicer in this Servicing Agreement or the Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Servicing Agreement or the Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made or deemed made, and such failure has a material adverse effect on the interests of the Noteholders (as determined by the Required Noteholders), and which continues unremedied for a period of thirty (30) days after the date on which a notice 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 any Co-Issuer, any Loan Trustee, the Paying Agent or the Indenture Trustee, or to the Servicer, any Co-Issuer, any Loan Trustee, the Paying Agent and the Indenture Trustee by the Required Holders; or
(d) the Servicer shall become subject to an Insolvency EventEvent shall occur with respect to the Servicer; or
(e) a final judgment is rendered against then, in the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration event of any such stayServicer Default, such judgment so long as a Servicer Default is not discharged; or
continuing, the Indenture Trustee may (f) and upon the written direction of the Required Noteholders shall), by notice then given to the Servicer, the Co-Issuers, the Loan Trustees, the Paying Agent and the Back-up Servicer or any Affiliate (a “Termination Notice”), terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment Servicing Agreement and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence . The existence of a Servicer Default, Default may be waived with the Control Party may among other things, declare an Event consent of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedRequired Noteholders. After receipt by the Servicer of a Termination Notice, and effective on the date that a on which the Successor Servicer shall have been appointed pursuant to Section 10.02assumes the servicing obligations hereunder, all authority and power of the Servicer under this Indenture Servicing Agreement shall pass to and be vested in such the Successor Servicer (a "Service “Successor Servicing Transfer")”) appointed by the Indenture Trustee pursuant to Section 5.02; and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Successor Servicing Transfer. Notwithstanding the receipt of the Servicer of a Termination Notice, the terminated Servicer shall, as provided in Section 5.02(a), continue to be bound to perform as Servicer in accordance with the terms of this Servicing Agreement until the Successor Servicer has assumed such servicing obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Indenture Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Acquired Advances as Loans provided for under this IndentureServicing Agreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesLoans, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by shall work with the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available transfer to the Successor Servicer or all its electronic records relating to the Trustee or its designee Loans, together with all other records, correspondence and documents necessary for the continued servicing and administration of the Loans in the manner and at a place selected by the Successor Servicer or the Trustee and in such form times as the Successor Servicer or the Trustee may shall reasonably request. To the extent that a Servicer Default gives rise to the Successor Servicing Transfer, the predecessor Servicer shall be responsible for all reasonable expenses incurred in transferring the servicing duties to the Successor Servicer; provided that Servicer shall be entitled to be reimbursed for all amounts to which Servicer is entitled pursuant to Section 2.02, and (B) segregate all cash, checks and any other instruments received by it from time amounts owed to time constituting Collections Servicer under this Servicing Agreement as of Acquired Advances in a manner acceptable such termination date. To the extent that compliance with this Section shall require the Servicer to disclose to the Successor Servicer and information of any kind which the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments Servicer deems to be confidential or give the Successor Servicer access to software or other intellectual property, the Trustee or its designee. At any time following a Termination Notice:
(1) The Successor Servicer shall, at the Trustee's request shall be required to enter into such customary licensing and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If confidentiality agreements as the Servicer fails shall deem reasonably necessary to provide protect its interests. Notwithstanding the notice foregoing, a delay in or failure of performance referred to Obligors required in paragraph (1a) above 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. If, following the expiration of the sixty (60)-day period in the case of a delay or failure of performance described in paragraph (b) above or the thirty (30)-day period in the case of a delay or failure of performance described in paragraph (c) above, the applicable delay or failure of performance remains outstanding but the Servicer continues to work diligently to remedy such delay or failure of performance, then Servicer shall have an additional thirty (30) days upon notice from the Servicer to the Indenture Trustee to attempt to recommence performance. If performance has not substantially resumed after such additional thirty (30) day period, then the Indenture Trustee may direct terminate the Obligors Servicer by written notice to the Servicer. Such notice shall specify the event upon which the termination is based. Termination under this paragraph shall be effective immediately upon delivery of Acquired Advances or the notice. Servicer shall not have any liability to any party as a consequence of them, that payment of all amounts payable under any such Acquired Advances be made directly termination, other than with respect to the Trustee or its designee;
(3) Each obligations accrued and unperformed as of the Issuer and Noteholder hereby authorizes date of termination. The preceding sentences shall not relieve the Trustee Servicer from using all commercially reasonable efforts to take any and all steps perform its obligations in a timely manner in accordance with the Issuer's name and on behalf terms of the Issuer this Servicing Agreement and the Noteholders necessary or desirable, in Indenture and the determination of Servicer shall provide the Trustee, to collect all amounts due under any Indenture Trustee and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Co-Issuers with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts so far to perform its obligations.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Trustee to make any payment, transfer or deposit or to take any action under any Enhancement Agreement on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any Agreement, which failure is not cured within five Business Days after notice of such failure from the other Transaction Documents Trustee to which it is a party; orthe Servicer;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any Lien on any Receivable which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of sixty (60) days after written notice to it of such failure; provided, however, that a "Servicer Default" shall not be deemed to have occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement;
(c) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement (other than with respect to those specified in clause (a) or any (b) above and with respect to clauses (viii), (ix) and (x) under Section 3.3(a) hereof, to the extent the terms of the other Transaction Documents to which it is a party, Section 3.3(c) hereof have been complied with) which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of ten thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee;
(d) 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 a material adverse effect on the rights of the Investor Certificateholders of any Series and which 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party a "Servicer Default" shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose occurred if the Seller or the Servicer shall have repurchased the related Receivables or, if applicable, all of such Receivables during such period in accordance with the provisions of this Indenture. No such waiver Agreement;
(e) the Servicer shall extend consent to any subsequent the appointment of a conservator or receiver or liquidator or other default similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or impair any right consequent thereon except similar proceedings of or relating to the extent expressly Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, 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; then, in the event of any Servicer Default, so waivedlong as the Servicer Default shall not have been remedied, the Trustee, by notice then given in writing to the Servicer (a "Termination Notice"), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); ) and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such 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, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under Section 10.1(a) for a period of 10 Business Days or under Section 10.1(b), (c) or (d) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) aboveterms of this Agreement, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Agents, any Enhancement Providers, the Seller and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificateholders with an Officers' Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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. (a) If any one of the following events (each being a "Servicer Default") shall occur and be continuing:
(ai) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to 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 of the other Transaction Documents to which it is a party; orIndenture Supplement;
(bii) 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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the Outstanding Amount of the Notes of all Series (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 5.07;
(iii) 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 (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 notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by Outstanding Amount of the Notes of all Series (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such representation, warranty or certification relates);
(iv) the Servicer in this Indenture shall consent to the appointment of a bankruptcy trustee or any other Transaction Document to which it is a party conservator or receiver or liquidator in any certificate delivered pursuant bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to this Indenture 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 other Transaction Document to which it is a party bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall prove to have been incorrect 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 material respect when madeapplicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(dv) with respect to a particular Series of Notes, any other Servicer Default described in the Servicer shall become subject related Indenture Supplement. Notwithstanding the foregoing, a delay in or failure of performance referred to an Insolvency Event; or
(ein Section 7.01(a)(i) for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days period of ten Business Days after the expiration applicable grace period or under Section 7.01(a)(ii) or (a)(iii) for a period of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue 60 Business Days after the applicable grace period, shall not constitute a Servicer Default if any, specified in such delay or failure could not be prevented by the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect exercise of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than reasonable diligence by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator and such delay or failure was caused by an Affiliate act of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee God or the Insurer (A) 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 receive notice from not relieve the Servicer that from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the Servicer is no longer able to discharge its duties under terms of this Indenture or (B) shall determine, in their respective reasonable judgment Agreement and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in provide the Trustees, each Transferor and any material respect Series Enhancer with the Credit and Collection Policy in the performance an Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its duties hereunder; Following efforts so to perform its obligations.
(b) Upon the occurrence of a Servicer Default, so long as the Control Party may among other thingsServicer Default shall not have been remedied, declare an Event either the Indenture Trustee or the Holders of DefaultNotes evidencing more than 50% of the Outstanding Amount of the Notes of all Series (or, deliver a Termination Notice 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 effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer 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 Servicer in the performance Notes of their obligations under this Indenture and its consequences, 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 Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferor which would permit the Transferor at its option to forgive acquire the payment of principal or interest Notes on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the 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 shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement with respect to all Notes or the Notes of one or more affected Series shall pass to and be vested in such the Successor Servicer (each, a "Service Transfer"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide the notice to Obligors required in paragraph (1) abovebe confidential, the Trustee may direct Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly Servicer shall deem reasonably necessary to the Trustee or protect its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesinterests.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuingoccur:
(a) any failure by Servicer to endorse and deposit on a daily basis the Servicer (i) to deliver any information to contents of the Trustee required Lockbox Account pursuant to Section 3.04(g)(vi) on or before 4.02, to direct the date such information is required Lockbox Account Bank to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (make deposits in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from Investment Account at the Trustee or the Insurertimes specified herein, or (iii) 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 on or before the date such payment, transfer or deposit is required to be made by Servicer at the times specified herein, to give instructions or notice to Trustee to make a required drawing under the terms Letter of this Indenture Credit or any of to make a Cash Collateral Withdrawal or to make the other Transaction Documents to which it is payments and deposits on a party; orDeposit Date in accordance with Section 4.08(b);
(b) any failure on the part of Servicer to deliver the Monthly Statement in accordance with Section 3.09;
(c) failure on the part of Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder the Majority Certificateholders or the Bond Insurer; assignment by the or Servicer of shall delegate or attempt to delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; or;
(cd) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Certificateholders or Bond Insurer or on the ability of Servicer to perform its obligations hereunder and which continues to be incorrect in any material respect when made; or
(d) for a period of 30 days after the Servicer shall become subject to an Insolvency Event; ordate on which written notice of such failure,
(e) Servicer shall consent to the appointment of a final conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer or of or relating to all or substantially all of its property; or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make any assignment for the benefit of 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 is rendered against the Originator while acting as Servicer or decree shall have remained in an amount greater than $1,000,000 andforce, within 30 undischarged or unstayed for a period of sixty (60) days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; orits entry;
(f) in the Servicer or case of Rockford while acting as Servicer, any Affiliate of the Servicer events referred to in Section 2.02(j), (k) or (l) of the Purchase Agreement shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereofhave occurred; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down a Trigger Event specified in Section 9.01(l) or (p)shall have occurred; or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that if, after the Control Party Initial Cut-Off Date, Servicer shall not merge, consolidate or effect any other corporate structural change, including without limitation any sale of the majority of its voting securities or transfer of ownership, Bond Insurer shall have the right right, in its sole discretion, to forgive modify the payment Servicer Defaults then, Trustee may or, at the written direction of principal or interest on any Note. Upon any such waiver Bond Insurer, by notice then given in writing to Servicer (a "Termination Notice"), shall terminate all of a past default, such default shall cease to exist, the rights and any such default shall be deemed to have been remedied for every purpose obligations of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Servicer as "Servicer" hereunder and in and to the extent expressly so waivedTrust Assets and the proceeds thereof. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall Agreement shall, with the prior written consent of Bond Insurer, pass to and be vested in such Successor Servicer (a "Service Transfer")the Back-up Servicer; and, without limitation, the Seller, Back-up Servicer and Trustee is are hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperatecooperate with Seller, at its expenseBack-up Servicer, with the Bond Insurer and Trustee and such any Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Trust Assets provided for under this IndentureAgreement, including and all authority over the Accounts and over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by Servicer in the Servicer to Investment Account or the Collection Account, or any other account, Class A Certificate Account or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Trust Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.,
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Rockford Industries Inc)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information deposit or credit to the Trustee Collection Account any amount required pursuant to Section 3.04(g)(vi) on or before the date such information is required under this Agreement to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee so deposited or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partycredited, which failure continues unremedied for a period of ten days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given given;
(c) failure on the part of the Seller or the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given
(A) to the Seller or the Servicer, as the case may be, by the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(e) the commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or;
(ch) any representation, warranty or certification made by statement of the Servicer or the Seller made in this Indenture Agreement or the other Basic Documents or any certificate, report or other Transaction Document to which it is a party or in any certificate writing delivered pursuant to this Indenture hereto or any other Transaction Document to which it is a party thereto shall prove to have been be incorrect in any material respect as of the time when made; or
the same shall have been made (d) excluding, however, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall become subject to an Insolvency Event; or
(e) be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a final judgment is rendered against material adverse effect on the Originator while acting as Servicer in an amount greater than $1,000,000 Noteholders or the Insurer and, within 30 days after entry thereof, such judgment is not discharged or execution written notice thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) shall have been given to the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which Seller by the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Indenture Trustee or the Insurer (A) shall receive notice from Issuer or by Noteholders, acting together as a single Class, evidencing in the Servicer that aggregate not less than 25% of the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that Outstanding Principal Amount of the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operationsNotes, or financial conditionso long as no Insurer Default has occurred, (2) has defaulted on any by the Insurer, the circumstance or condition in respect of its material obligations (other than those included in this Indenture)which such representation, warranty or (3) has ceased to conduct its business in the ordinary course; orstatement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to comply have a valid perfected first priority security interest in any material respect with Contracts pledged by the Credit and Collection Policy in Issuer to the performance Indenture Trustee the outstanding aggregate Principal Balance of its duties hereunder; Following which exceeds 5.00% of the occurrence of a Servicer DefaultPool Balance;
(k) unless authorized under Section 5.02, the Control Party may among other things, declare Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of DefaultDefault as defined in the Insurance Agreement; then and in each and every case, deliver so long as such Servicer Default shall not have been remedied, (i) if no Insurer Default has occurred and is continuing, the Insurer or (ii) if an Insurer Default has occurred and is continuing, the Indenture Trustee acting at the direction of the Noteholders evidencing not less than 25% of the outstanding amount of the Notes, acting together as a Termination Notice single Class, by notice then given in writing to the Servicer (and effect a Service Transfer. The Control Party may waive any default to the Insurer, the Indenture Trustee and the Issuer if given by the Issuer or Noteholders) may terminate all the rights and obligations of the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any NoteAgreement. Upon any such waiver termination, termination of a past defaultthe Servicer as custodian, such default shall cease if the Servicer is acting as such, can be made pursuant to exist, and any such default shall be deemed to have been remedied for every purpose of this IndentureSection 2.08. No such waiver shall extend to any subsequent On or other default or impair any right consequent thereon except to after the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02such written notice of termination, all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes, the Contracts 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 Issuer are hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in 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 Contracts and related documents, or otherwise. The Servicer agrees to cooperate, at its expense, shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in (i) effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountin, or which shall have been deposited by the Servicer to in, the Collection Account, Account or any other account, or which (ii) shall thereafter be received by it with respect to the Acquired Advances, and (ii) assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer until all servicing activities have been transferred associated with its transition to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the role of Successor Servicer (whether due to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shalltermination, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discsresignation or otherwise), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Investor Certificateholders of any Series and which continues unremedied for a period of ten 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 Trustee, provided that the Trustee has actual knowledge of such failure, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Invested Amount of any Noteholder Series materially adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Investor Certificateholders of any Series and which continues to be incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) for a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 period of 60 days after the expiration date on which written notice of any such stayfailure, such judgment is not discharged; or
(f) requiring the same to be remedied, shall have been given to the Servicer or any Affiliate of by the Servicer shall fail to pay any principal of or premium or interest on any Debt for which Trustee provided that the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount Trustee has actual knowledge of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to acceleratefailure, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default the Trustee by the Issuer or the Servicer in the performance Holders of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall Investor Certificates evidencing Undivided Interests aggregating not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power less than 50% of the Servicer under this Indenture shall pass Invested Amount of any Series materially adversely affected thereby and continues to and be vested in materially adversely affect such Successor Servicer (a "Service Transfer")Investor Certificateholders for such period; and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.or
Appears in 1 contract
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to Article IV or 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 transfer, deposit, withdrawal or deposit drawing, or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a partyAgreement; or
(b) any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Indenture or any of Agreement which has a material adverse effect on the other Transaction Documents to which it is a partyCertificateholders, which failure continues unremedied for a period of ten 60 days after the date on which written notice thereof, of such failure requiring the same to be remedied, remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Investor Amount of any Noteholder Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period; or the Insurer; assignment by the Servicer Servicer's delegation of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Agreement except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentSection 8.7; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Certificateholders and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Investor Amount of any Series adversely affected thereby and continues to materially adversely affect such Investor Certificateholders for such period, or if such failure cannot be cured within such 60-day period owing to causes beyond the control of the Servicer, if the Servicer shall fail to proceed promptly to cure the same and prosecute the curing of such failure with diligence and continuity; or
(d) the Servicer shall (a) become insolvent, (b) fail to pay its debts generally as they become due, (c) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law, or (d) become a party to (or be made the subject to an Insolvency Event; or
(eof) any proceeding provided for by any Debtor Relief Law, other than as a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 creditor or claimant, and, in the event such proceeding is involuntary, the petition instituting same is not dismissed within 30 60 days after entry thereofits filing; then, so long as such judgment is Servicer Default shall not discharged or execution thereof stayed pending appealhave been remedied, either the Trustee, or within 10 days after the expiration Holders of any such stayInvestor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Amount, such judgment is not discharged; or
(f) by notice then given in writing to the Servicer or any Affiliate (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due under this Agreement and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity Receivables and the proceeds thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) 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 Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to the Servicer, in any Collection Account or Series Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and such electronic form as the Successor Servicer compatible may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interest. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations, within five Business Days if any, in respect of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available any Enhancement to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Spiegel Credit Corp Iii)
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 (i) to deliver any information give advice or notice to the Receivables Trustee required pursuant to Section 3.04(g)(vi) an agreed schedule of collections and allocations or to advise the Receivables Trustee to make any required drawing, withdrawal, or payment pursuant to the Transaction Documents on or before the date occurring five Business Days after the date such information payment, transfer, deposit, withdrawal or drawing or such advice or notice is required to be given made or given, as the case may be, under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture Deed or any of the other Transaction Documents to which it is a party; orDocument;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Deed or any Transaction Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Investor Beneficiaries of any Outstanding Issuance and which it is a partyfailure, which failure if capable of remedy, continues unremedied for a period of ten 60 days or more 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 Receivables Trustee, or to the Servicer and the Receivables Trustee by an Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Investor Interests in respect of any Noteholder or Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the Insurer; assignment interests of such Investor Beneficiary in respect of such Outstanding Issuance for such period;
(c) delegation by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Deed to any other entity, except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orClause 10.6;
(cd) any relevant representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Deed or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries in respect of any Outstanding Issuance and continues to be incorrect in any material respect when made; orfor a period of 60 days or more after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee or to the Servicer and the Receivables Trustee by an Investor Beneficiary or Investor Beneficiaries holding 50 per cent. or more of the Aggregate Investor Interest in respect of any Outstanding Issuance adversely affected thereby and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary in respect of any Outstanding Issuance affected for such period;
(de) the Servicer shall become subject consent to an Insolvency Event; or
(e) or take any corporate action relating to the appointment of a final judgment is rendered receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or proceedings are initiated against the Originator while acting as Servicer in an amount greater than $1,000,000 andTransferor under any applicable liquidation, insolvency, composition, re- organisation or similar laws for its winding-up, dissolution, administration or re- organisation (except for a solvent re-organisation) and such proceedings are not discharged within 30 60 days after entry thereofor a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets is legally and validly appointed and such judgment appointment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged14 days; or
(f) the Servicer or any Affiliate a director of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified admit in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer writing that the Servicer is no longer able unable to discharge pay its duties under this Indenture or (Bdebts as they fall due within the meaning of Section 123(1) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that of the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer Insolvency Act 1986 or the Servicer in makes a general assignment for the performance benefit of their or a composition with its creditors or voluntarily suspends payment of its obligations under this Indenture and with a view to the general readjustment or rescheduling of its consequencesindebtedness, provided, however, that the Control Party then so long as such Servicer Default shall not have been remedied, either the right to forgive Receivables Trustee, if directed by the payment Investor Beneficiaries, or Investor Beneficiaries representing in aggregate more than 662/3% of principal or interest on any Note. Upon any such waiver of a past defaultthe Combined Aggregate Investor Interest, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except in each case by notice then given in writing to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service TransferServicer Termination Notice"); and, without limitation, may terminate all of the Trustee is hereby authorized, empowered rights and instructed (upon the failure obligations of the Servicer as Servicer under this Deed. Notwithstanding the foregoing, a delay in or failure of performance referred to cooperatein paragraph (a) above for a period of 10 London Business Days or under paragraph (b), (c) or (d) for a period of 60 London Business Days (in addition to any period provided in (a) to execute and deliver, on behalf (d) above) shall not constitute a Servicer Default if such delay or failure could not have been prevented by the exercise 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held reasonable diligence by the Servicer for deposit and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer from using reasonable efforts to perform its obligations in a timely manner in accordance with the Collection Accountterms of this Deed and any Transaction Document and the Servicer shall provide the Receivables Trustee with an Officer's Certificate (copied to any Enhancement Provider, the Reserve Account Transferor and each Investor Beneficiary) giving prompt notice of such failure or the Issuer's Accountdelay by it, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received together with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems a description of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days cause of such Service Transfer, (A) assemble such documents, instruments failure or delay and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable its efforts so to collect the Acquired Advances and shall make the same available to the Successor Servicer or the Trustee or perform its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Servicer Defaults. If any one Each of the following events (each being shall ----------------- constitute a "Servicer Default:") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Indenture Trustee required pursuant to Section 3.04(g)(vi) on for deposit in any of the Designated Accounts or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Owner Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (for deposit in the case of Certificate Distribution Account any report other than a Servicer's Daily Report required payment or Monthly Report) remain unremedied for ten Business Days after written notice from to direct the Indenture Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partydistributions therefrom, which failure continues unremedied for a period of ten five Business Days after written notice is received by the Servicer from the Applicable Trustee or after discovery of such failure by an officer of the Servicer;
(b) failure on the part of the Seller or the Servicer to duly observe or perform in any material respect any other covenants or agreements of the Seller or the Servicer set forth in the Purchase Agreement, this Agreement or any of the other Further Transfer and Servicing Agreements which failure (i) materially and adversely affects the rights of Financial Parties, and (ii) continues unremedied 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 Seller or the Servicer, as applicable, by the either Trustee, or to the Servicer Seller or the Servicer, as applicable, and the to either Trustee by any Noteholder 25% or the Insurer; assignment by the Servicer of its duties without (i) an express assumption more of the Servicer's obligations hereunder by such assignee, (ii) to Controlling Class as of the extent close of the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orpreceding Distribution Date;
(c) any representation, warranty or certification made by the Servicer in pursuant to this Agreement, the Purchase Agreement, Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Further Transfer and Servicing Agreement shall prove to have been incorrect in any material respect when made; or, and if the consequences of such representation, warranty or certification being incorrect shall be susceptible of remedy in all material respects, such consequences shall not be remedied in all material respects within 30 days after the Servicer first becomes aware or is advised that such representation, warranty or certification was incorrect in a material respect;
(d) the Servicer shall become subject to an Insolvency Evententry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver or liquidator for the Seller or the Servicer, in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default consent by the Issuer Seller or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Accountappointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or any other account, similar proceedings of or which shall thereafter be received with respect relating to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of Seller or the Servicer and the Successor Servicer compatible or of or relating to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days substantially all of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available to the Successor Servicer their respective property; or the Trustee or its designee at a place selected by the Successor Servicer Seller or the Trustee and Servicer shall admit in such form writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the Successor Servicer benefit of its creditors or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that voluntarily suspend payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Navistar Financial Retail Receivables Corporation)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Trustee pursuant to the terms of this Agreement or any Supplement on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the interests hereunder of the other Transaction Documents to Investor Certificateholders of any Series or Class and which it is a party, which failure continues unremedied for a period of ten 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 Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount (or, with respect to any such failure that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such failure relates); or the Servicer shall delegate its duties under this Agreement, except as permitted by Sections 8.02 or 8.07, a Responsible Officer of the Trustee has actual knowledge of such delegation and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing more than 50% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orAggregate Investor Amount;
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement or any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Investor Certificateholders of any Series or Class and which continues to be incorrect in any material respect when madefor 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 more than 50% of the Aggregate Investor Amount (or, with respect to any such representation, warranty or certification that does not relate to all Series, 50% of the aggregate Investor Amount of all Series to which such representation, warranty or certification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or moreDefault shall not have been remedied, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) either the Trustee or the Insurer (A) shall receive Holders of Investor Certificates evidencing more than 50% of the Aggregate Investor Amount, by notice from the Servicer that the Servicer is no longer able then given to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1and to the Trustee if given by the Investor Certificateholders) has experienced (a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture"Termination Notice"), or (3) has ceased to conduct its business in may terminate all but not less than all the ordinary course; or
(i) rights and obligations of the Servicer shall fail to comply as Servicer under this Agreement and in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer Receivables and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, proceeds thereof; provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with subsection 10.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall not have offer the Transferor the right at its option to forgive purchase the payment of principal or interest Certificateholders' Interest on any Note. Upon any such waiver the Distribution Date next succeeding 60 days after the receipt by the Servicer of a past default, such default shall cease to exist, and any such default Termination Notice. The purchase price for the Certificateholders' Interest shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Transferor shall notify the Trustee in writing prior to the Record Date for the Distribution Date of the purchase if it is exercising such option. If the Transferor exercises such option, the Transferor shall (x) if the Transferor's short-term deposits or long-term unsecured debt obligations are not rated at the time at least P-3 or Baa3, respectively, by Moody's, deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Transferor, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Insurance Proceeds. The Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 necessary to protect its interests. Notwithstanding the foregoing, any delay in or failure of performance under subsection 10.01(a) for a period of 5 Business Days or under subsections 10.01(b) or (c) for a period of 60 days (in addition to any period provided in subsections 10.01(a), (b) or (c)) shall not constitute a Servicer Default until the expiration of such additional 5 Business Days or 60 days, respectively, if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or its designeeundeclared war, terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If preceding sentence shall not relieve the Servicer fails from using its best efforts to provide perform its respective obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or this Agreement and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer Supplement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any each Rating Agency, the Holders of the Transferor Certificates and all Acquired Advances, including, without limitation, endorsing the IssuerInvestor Certificateholders with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure or delay by it, together with a description of its efforts to so perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Travelers Bank Credit Card Master Trust I)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee, conservator, receiver, liquidator or similar official in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary Default shall not have been remedied, any of the Indenture Trustee, any Controlling Entity or secondary party) if the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Outstanding Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferor which would permit the Transferor at its option to forgive acquire the payment of principal or interest Notes on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each Outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service TransferSERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or information of any kind which the Trustee or 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 designeeinterests. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances shall pay to the related Obligors Indenture Trustee and direct that payments be made directly 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 the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment 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 all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the IssuerSeries Enhancer with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Household Consumer Loan Corp Ii)
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 (i) to deliver make any information payment, transfer or deposit or to give instructions or to give notice to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(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 Indenture Agreement or any Supplement which has a material adverse effect on the Investor Certificateholders of the other Transaction Documents any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which it is a party, which failure continues unremedied for a period of ten 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 Holders of Investor Certificates evidencing not less than 10% of the aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 8.02 and 8.07;
(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 a material adverse effect on the rights of the Investor Certificateholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which material adverse effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Investor Certificates evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Investor Certificates (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, in the event of any Servicer Default, so long as the Servicer Default 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 shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due under this Agreement and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) in and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity Receivables and the proceeds thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, if within 60 days of receipt of a Termination Notice the Trustee does not receive any bids from Eligible Servicers in accordance with Section 10.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Sellers to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Trustee shall not have grant a right of first refusal to the right Sellers which would permit the Sellers at their option to forgive purchase the payment of principal or interest Certificateholders’ Interest on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The purchase price for the Certificateholders’ Interest shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Supplement. The Sellers shall notify the Trustee prior to the Record Date for the Distribution Date of the purchase if they are exercising such right of first refusal. If they exercise such right of first refusal, the Sellers shall (x) deliver to the Trustee an Opinion of Counsel (which must be an independent outside counsel) to the effect that, in reliance on certain certificates to the effect that the Receivables constitute fair value for consideration paid therefor and as to the solvency of the Sellers, the purchase would not be considered a fraudulent conveyance and (y) deposit the purchase price into the Collection Account not later than 12:00 noon, New York City time, on such Distribution Date in immediately available funds. The purchase price shall be allocated and distributed to Investor Certificateholders in accordance with Article IV and the terms of each Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"”); and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorneyattorney- in-in fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails reasonably deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in paragraph (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under the Sellers, any Series Enhancer and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Investor Certificateholders with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions to bank holding the Lockbox or ACH Account to make such payment, transfer or deposit on or before the date occurring 3 Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Servicing Agreement, provided however, that where such failure is due to oversight, error or any other reason not including bad faith on the part of the other Transaction Documents Servicer, such 3 Business Day period shall commence upon notice to which it is a party; orServicer 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 Indenture or any of the other Transaction Documents to Servicing Agreement and which it is a party, which failure continues unremedied for a period of ten 30 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by Buyers;
(c) any representation, warranty or certification made by 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 a materially adverse effect on the Loans (taken as a whole) and which materially adverse effect continues for a period of 30 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orBuyers;
(d) the Servicer shall become subject to an Insolvency any Non-Compliance Event; or
(e) Servicer shall consent to the appointment of a final judgment is rendered against the Originator while acting as bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appealof or relating to all or substantially all its property, or within an action seeking a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against Servicer and such action shall have remained undischarged or unstayed for a period of 60 days or an order or decree providing for such relief shall have been entered; or Servicer shall admit in writing its inability to pay its debts generally as they become due, 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; then, Buyers, by notice given to Servicer (a “Termination Notice”), may terminate all, but not less than all, of the rights and obligations of Servicer as servicer under this Servicing Agreement and appoint a Successor Servicer, subject to Section 4.2. Notwithstanding the foregoing, a delay in or failure of performance shall not constitute a Servicer Default (i) under paragraph (a) above for a period of 10 days Business Days after the expiration applicable grace period or (ii) under paragraph (b), (c) or (d) above for a period of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue 15 Business Days after the applicable grace period, if anysuch delay or failure could not be prevented by the exercise of reasonable diligence by Servicer and such delay or failure was caused by an act of God or the public enemy, specified acts of declared or undeclared war, public disorder, rebellion or sabotage, terrorism, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve Servicer from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the agreement terms of this Servicing Agreement, and Servicer shall provide Buyers with prompt notice of such failure or instrument relating delay by it, together with a description of its efforts so to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace periodperform its obligations. In addition, if any, specified Servicer experiences a material deterioration in its financial condition such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the that Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able unable to discharge fulfill its duties obligations under this Indenture or (B) shall determine, Servicing Agreement in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change respect (such material deterioration in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenturea “Financial Condition Event”), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail promptly give notice to comply in any material respect with Buyers of such Financial Condition Event. Each of Buyers and Servicer shall have the Credit right, at their respective option, to terminate all, but not less than all, of the rights and Collection Policy in the performance obligations of its duties hereunder; Following the occurrence of Servicer as servicer under this Servicing Agreement and have Buyers appoint a Servicer DefaultSuccessor Servicer, the Control Party may among other thingssubject to Section 4.2, declare an Event of Default, deliver by providing a Termination Notice to the other party upon 90 days prior written notice, unless Servicer and effect cures such Financial Condition Event within such 90 days. If a Service Transfer. The Control Party may waive any default by the Issuer or the Financial Condition Event is not cured within such 90 days, then such Financial Condition Event shall constitute a Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired AdvancesDefault.
Appears in 1 contract
Sources: Servicing Agreement (GreenSky, Inc.)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the related Trustee required pursuant to Section 3.04(g)(vi) on or before for deposit in any of the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee Accounts or the Insurer, (ii) Certificate Distribution Account any required payment or to deliver any other information or reports to direct the Indenture Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partydistributions therefrom, which failure continues unremedied for a period of ten days three Business Days after discovery of such failure by an officer of the Servicer or after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given (i) to the Servicer by the Trustee, related Trustee or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent Servicer and to the Trustees by the Holders of Notes, evidencing not less than 25% of the Outstanding Amount of the Notes;
(b) failure by the Servicer (or so long as the Servicer is AHFC, the OriginatorSeller) 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, continued performance the Seller) set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of its obligations under Certificateholders or Noteholders and (ii) continue unremedied for a period of 90 days after the Purchase 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 related Trustee or (B) to the Servicer or the Seller (as the case may be), and Contribution Agreementto the related Trustee by the Holders of Notes, and/or (iii) rating agency consentevidencing not less than 25% of the Outstanding Amount of the Notes; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down an Insolvency Event specified with respect to the Seller or the Servicer; then, and in Section 9.01(l) or (p); or
(h) each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Insurer Holders of Notes evidencing not less than 25% of the Outstanding Amount of the Notes (Aor, if the Notes have been paid in full and the Indenture has been discharged in accordance with its terms, by holders of Certificates evidencing not less than 25% of the Percentage Interests) shall receive by notice from then given in writing to the Servicer that and the Servicer is no longer able Owner Trustee (and to discharge its duties under this the Indenture or (BTrustee if given by the Noteholders) shall determine, in their respective reasonable judgment may terminate all the rights and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included the obligations set forth in this Indenture), Section 6.02 that accrued on or (3prior to the effective date of the termination) has ceased to conduct its business in the ordinary course; or
(i) of the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal Agreement. On or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on after the date that a Successor Servicer shall have been appointed pursuant to Section 10.02specified in such written notice, all authority and power of the Servicer under this Indenture 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, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf for the benefit of the predecessor Servicer, as attorney-in 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 cooperate, at its expense, shall cooperate with the Trustee and such Successor Servicer and the Trustees in (i) effecting the termination of the responsibilities and rights of the predecessor Servicer to conduct servicing hereunderunder this Agreement, including, without limitation, 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 Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the predecessor Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to predecessor Servicer, in the Collection Account, Accounts or any other account, the Certificate Distribution Account or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected Receivables that shall at that time by held by the Successor Servicer to verify collection records predecessor Servicer. All reasonable costs and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records expenses (including computer tapes servicer conversion costs and discs), which evidence attorneys' fees) incurred in connection with transferring the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section shall be paid by the Trustee, and, promptly predecessor Servicer upon receipt, remit all presentation of reasonable documentation of such cash, checks costs and instruments to expenses. Any costs or expenses incurred in connection with a Servicer Default shall constitute an expense of administration under Title 11 of the Successor Servicer United States Bankruptcy Code or the Trustee any other applicable Federal or its designeeState bankruptcy laws. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give Upon receipt of notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the occurrence of a Servicer fails to provide the notice to Obligors required in paragraph (1) aboveDefault, the Indenture Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly shall give notice thereof to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advanceseach Rating 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 (each being a ----------------- "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer (i) to deliver make any information payment, transfer or deposit or to give instructions or to give notice to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any such payment, transfer or deposit on or before the date occurring five days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any of the other Transaction Documents to which it is a party; orSupplement;
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement or any of the other Transaction Documents to which it is a party, Supplement which failure continues unremedied for a period of ten 30 days after (x) the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer by any Control Party or (y) the Trustee, or to date on which the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer has actual knowledge of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orfailure;
(c) any representation, warranty or certification made by the Servicer in this Indenture or Agreement, any other Transaction Document to which it is a party Supplement or in any certificate delivered pursuant to this Indenture Agreement or any other Transaction Document to which it is a party Supplement shall prove to have been incorrect when made in any material respect when madewhich inaccuracy continues unremedied for a period of 30 days after (x) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any Control Party or (y) the date on which the Servicer has actual knowledge of such failure; or
(d) the Servicer shall become voluntarily seek, consent to or acquiesce in the benefit or benefits of any Debtor Relief Law or becomes a party to (or be made the subject to an Insolvency Event; or
(eof) a final judgment any proceeding provided for under any Debtor Relief Law, other than as creditor or claimant, and in the event such proceeding is rendered against involuntary, the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment petition instituting same is not discharged dismissed within 60 days of its filing; or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge assign its duties under this Indenture or (B) shall determineAgreement, except as permitted by this Agreement; then, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on event of any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, so long as the Control Party may among other thingsServicer Default shall not have been remedied, declare an Event of Default, deliver a Termination Notice the Requisite Holders by notice then given in writing to the Servicer and effect the Transferor (with a Service Transfer. The Control Party copy thereof to each Rating Agency) and to the Trustee (a "Termination Notice"), may waive any default by terminate all of the Issuer or ------------------ rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture Agreement and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, in and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedReceivables and the proceeds thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.: -------------
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Compucom Systems Inc)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) ITT to make any payment, transfer or deposit required hereunder on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit is required to be made or given, as the case may be, under the terms of this Indenture Agreement; provided, however, that any such failure caused by a nonwillful act of ITT shall not constitute a Servicer Default if ITT promptly remedies such failure within five (5) Business Days after receiving notice of such failure or any otherwise becoming aware of the other Transaction Documents to which it is a party; orsuch failure;
(b) any failure on the part of the Servicer ITT duly to observe or perform any other covenants or agreements of the Servicer ITT set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has an adverse effect on Yamaha's rights in the Receivables and which continues unremedied for a period of ten sixty (60) days after the date on which the written notice of such failure requiring the same to be remedied shall have been given to ITT and which continues to adversely affect Yamaha's rights in the Receivables, or ITT shall delegate its duties under this Agreement;
(c) any representation, warranty or certification made by ITT in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has an adverse effect on Yamaha's rights in the Receivables and which continues to be incorrect in any material respect and which continues to affect adversely Yamaha's right in the Receivables for a period of sixty (60) days after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer ITT by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madeYamaha; or
(d) ITT shall consent to the Servicer shall become subject appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged ITT or execution thereof stayed pending appealof or relating to all or substantially all of its property, or within 10 days after a decree or order of a court or agency or supervisory authority having jurisdiction in the expiration premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against ITT and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or ITT shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any such stayapplicable insolvency or reorganization statute, such judgment is not discharged; or
(f) make any assignment for the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any benefit of its material obligations (other than those included in this Indenture), creditors or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance voluntarily suspend payment of its duties hereunderobligations; Following the occurrence of a then, so long as such Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party Default shall not have been remedied, Yamaha, by notice then given in writing to ITT (a "Termination Notice"), may terminate all of the right rights and obligations of ITT as Servicer under this Agreement and in, to forgive and under the payment of principal or interest on any Note. Upon any such waiver of Receivables and the proceeds thereof and appoint a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivednew Servicer (a "Service Transfer"). After receipt by the Servicer ITT of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by Yamaha pursuant to Section 10.024.2, all authority and power of the Servicer ITT under this Indenture Agreement shall pass to and be vested in such Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee Yamaha is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer ITT to cooperate) to execute and deliver, on behalf of the ServicerITT, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer ITT to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer ITT agrees to cooperate, at its expense, cooperate with the Trustee Yamaha and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer ITT to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer ITT to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer ITT for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by ITT, in the Servicer to the Collection Concentration Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection recoveries. ITT shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 4.1 shall require ITT to disclose to the Successor Servicer information of any kind which ITT reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as ITT shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance referred to in Section 4.1(a) for a period of five (5) Business Days after the applicable grace period or under Section 4.1(b) or (c) for a period of ten (10) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by ITT and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve ITT from using its designee. At any time following best efforts to perform its obligations in a Termination Notice:
(1) The Servicer shall, at timely manner in accordance with the Trusteeterms of this Agreement and ITT shall provide Yamaha with an officer's request and at the Servicer's expense, give certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations. ITT shall immediately notify Yamaha in writing of any Servicer Default.
Appears in 1 contract
Sources: Servicing Agreement (Yamaha Motor Receivables 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement or any the Indenture, and which continues unremedied for a period of five (5) Business Days after the earlier of the date on which (A) any Responsible Officer of the Servicer becomes aware of such failure or (B) written notice thereof shall have been given to such Responsible Officer from any other party to a Transaction Documents to which it is a partyDocument; or
(b) any failure on the part of the Servicer duly to observe or perform perform, in any material respect (in the sole reasonable determination of the Administrative Agent), any other covenants or agreements of the Servicer set forth in this Agreement or the Indenture or any of the other Transaction Documents to and which it is a party, which failure continues unremedied for a period of ten sixty (60) days after the earlier of the date on which (A) any Responsible Officer of the Servicer becomes aware of such failure, or (B) written notice thereof, requiring the same to be remedied, thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the Servicer by the Trusteemateriality qualifier set forth herein shall not apply to any covenant or agreement, or to the Servicer if and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer that observance or compliance with such covenant or agreement is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentqualified by “Adverse Effect” or another materiality qualifier; or
(c) any representation, warranty or certification made by the Servicer in this Agreement or the Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Agreement or the Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect when made or deemed made and such failure has a material adverse effect on the Noteholders (as determined by the Administrative Agent in its sole reasonable discretion) and which continues unremedied for a period of sixty (60) days after the earlier of the date on which (A) any material respect when madeResponsible Officer of the Servicer becomes aware of such failure or (B) written notice thereof shall have been given to such Responsible Officer from any other party to a Transaction Document; provided that the materiality qualifier set forth herein shall not apply to any representation, warranty or certification, if and to the extent that the effect of the making of such representation, warranty or certification is qualified by “Adverse Effect” or another materiality qualifier; or
(d) the Servicer shall become subject to an Insolvency EventEvent with respect to the Servicer; or
(e) a final judgment is rendered against the Originator while acting Servicer or OneMain Financial or any affiliate thereof shall have been terminated or otherwise removed as Servicer in an amount greater than $1,000,000 andservicer, within 30 days after entry thereof, such judgment is not discharged master servicer or execution thereof stayed pending appeal, or within 10 days after the expiration subservicer of any other personal loan securitization following a servicer default, master servicer default, subservicer default or similar event in connection with such stay, such judgment is not dischargedother securitization; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default; then, deliver 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 Issuer Loan Trustee for the benefit of the Issuer, the Back-up Servicer and each Noteholder (by delivery to the Administrative Agent) (a “Termination Notice Notice”) (i) terminate all of the rights and obligations of the Servicer as Servicer under this Agreement and the Indenture and (ii) direct the applicable party to terminate any power of attorney granted to the Servicer and effect direct such party to execute a Service Transfernew power of attorney to the Indenture Trustee or its designee. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver existence of a past default, such default shall cease to exist, and any such default shall Servicer Default may be deemed to have been remedied for every purpose waived with the consent of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAdministrative Agent (acting at the direction of the Required Noteholders). After receipt by the Servicer of a Termination Notice, and effective on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02Servicing Transfer Date, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service “Servicing Transfer")”) appointed by the Indenture Trustee pursuant to Section 8.02; and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperatecooperate promptly) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate and to cause each Subservicer to cooperate (and each Subservicer agrees to 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 hereunderhereunder and (ii) transferring all duties and obligations of the Servicer hereunder to such Successor Servicer, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service and administer the Acquired Advances as Loans provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account or other applicable Note Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesLoans, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred shall transfer to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection all its electronic records and reports made prior relating to the Service Transfer Loans, together with all other records, correspondence and (y) assisting documents necessary for the continued servicing and administration of the 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 making compliance with the computer systems 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 and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential or the Trustee or its designee at a place selected by give the Successor Servicer access to software or the Trustee and in such form as other intellectual property, the Successor Servicer or the Trustee may reasonably request, shall be required to enter into such customary licensing and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If confidentiality agreements as the Servicer fails shall deem reasonably necessary to provide protect its interests. Notwithstanding the notice foregoing, a delay in or failure of performance referred to Obligors required in paragraph (1a) above for a period of five (5) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by a Force Majeure Event. If, following the expiration of such incremental sixty-day grace period in the case of a delay or failure of performance described in paragraph (b) or (c) above, the Trustee may direct applicable delay or failure of performance remains outstanding but the Obligors Servicer continues to work diligently to remedy such delay or failure of Acquired Advances or any of themperformance, that payment of all amounts payable under any such Acquired Advances then the grace period shall be made directly extended for a further thirty (30) days upon notice from the Servicer to the Trustee or Indenture Trustee. The preceding sentences shall not relieve the Servicer from using all commercially reasonable efforts to perform its designee;
(3) Each obligations in a timely manner in accordance with the terms of this Agreement and the Issuer and Noteholder hereby authorizes Servicer shall provide the Trustee to take any and all steps in the Issuer's name and on behalf of Indenture Trustee, the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Depositor with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (OneMain Financial Holdings, Inc.)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give notice or instructions to the date such Indenture Trustee to make any required withdrawal or payment, transfer or deposit on the date the Servicer is required to be made do so under the terms of this Agreement, the Indenture or any of Indenture Supplement, or within the other Transaction Documents to applicable grace period, which it is a party; orwill not exceed 35 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 Indenture Agreement which has an Adverse Effect on the Noteholders of any Series, Class or any of the other Transaction Documents to Tranche and which it is a party, which failure continues unremedied for a period of ten 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 Servicer, the Owner Trustee, the Indenture Trustee and the Trustee by any Noteholder or the Insurer; assignment applicable Collateral Agent by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 50% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, Classes or Tranches, not less than 50% of the Servicer in this Indenture aggregate unpaid principal amount of all Series, Classes or any other Transaction Document Tranches to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall consent to the appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become subject due, file a petition to an Insolvency Eventtake 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) a final judgment is rendered against any other Servicer Default described in any Indenture Supplement. Then, in the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration event of any such stayServicer Default, such judgment is not discharged; or
(f) so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or any Affiliate the Holders of Notes evidencing more than 50% of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate unpaid principal amount of such Debt is $250,000 or moreall affected Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified notice then given in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a "TERMINATION NOTICE"), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations 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 its consequences, provided, however, receives an Officer's Certificate of the Servicer to the effect that the Control Party shall Servicer cannot have in good faith cure the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except Servicer Default which gave rise to the extent expressly so waivedTermination 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 shall have been is appointed by the Indenture Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service TransferSERVICE TRANSFER"); ) and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Collateral provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other accountAccount for 74 the applicable Asset Pool, or which shall thereafter be received with respect to the Acquired AdvancesCollateral, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, Insurance Proceeds and Interchange (xif any) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior applicable to the Service Transfer and (y) assisting 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 making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Collateral in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove 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 Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Owner Trustee, to collect all amounts due under any the applicable Collateral Agent and all Acquired Advances, including, without limitation, endorsing the Issuereach Transferor with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (each being a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the Outstanding Amount (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of the Notes of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02, 5.05 and 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 (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 sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by Outstanding Amount (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; orcertification relates);
(d) the Servicer shall become subject consent to an Insolvency Eventthe appointment of a bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy proceeding or other insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee or a conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; oror the Servicer shall admit in writing its inability to pay
(e) a final judgment is rendered against any other Servicer Default described in the Originator while acting as Servicer related Indenture Supplement; then, in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration event of any such stayServicer Default, such judgment is not discharged; or
(f) so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or any Affiliate the Holders of Notes evidencing more than 50% of the Outstanding Amount, by notice then given to the Servicer and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders) (a "Servicer Termination Notice"), may terminate all but not less than all the rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or moreunder this Agreement; provided, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace periodhowever, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect within sixty (60) days of such default or event is to accelerate, or to permit the acceleration of, the maturity receipt of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer Termination Notice (1) has experienced the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a material adverse change in its business, assets, liabilities, operations, or financial conditionSuccessor Servicer, (2) has defaulted on any receives an Officer's Certificate of its material obligations (other than those included the Servicer to the effect that the Servicer cannot in this Indenture)good faith cure the Servicer Default which gave rise to the Servicer Termination Notice, or and (3) has ceased the Indenture Trustee is legally unable to conduct act as Successor Servicer, then the Indenture Trustee shall grant a right of first refusal to the Transferor which would permit the Transferor at its business option to acquire the Notes on the Payment Date in the ordinary course; or
(i) next calendar month. The price for the Servicer Notes shall fail be equal to comply the sum of the amounts specified therefor with respect to each outstanding Series in any material respect the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Payment Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the amount of the purchase price into the Collection Account not later than 1:00 p.m., New York City time, on such Payment Date in immediately available funds. The amount of the purchase price shall be allocated and distributed to Noteholders in accordance with the Credit and Collection Policy in terms of the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedeach Indenture Supplement. After receipt by the Servicer of a Servicer Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service Servicing Transfer"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Servicing Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, shall within twenty (x20) assisting any accountants selected by the Successor Servicer to verify collection Business Days transfer its -47- 52 electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment 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 all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the IssuerSeries Enhancer with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (Advanta Business Recievables Corp)
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five (5) Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement, the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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, the Indenture, any Indenture Supplement, the Affinity Card Agreement or any of the other Transaction Documents to Facilities Management Agreement and which it is a party, which failure continues unremedied for a period of ten sixty (60) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing not less than 10% of the aggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such failure that does not relate to all Series, 10% of the aggregate unpaid principal amount of all Notes Outstanding of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by SECTIONS 6.02 and 6.07;
(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 and which Adverse Effect continues for a period of sixty (60) days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder or the Insurer; assignment by the Servicer Holders of its duties without (i) an express assumption Notes evidencing not less than 10% of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes Outstanding (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Notes Outstanding of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee or conservator or receiver or liquidator in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar Proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) 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 Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar Proceedings, or the winding-up or liquidation of its affairs, shall have been commenced against the Servicer and 52 such action shall have remained undischarged or unstayed for a period of sixty (60) days or an order or decree providing for such relief shall have been entered; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as Default shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing a primary or secondary party) if majority of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes Outstanding, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination 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 (60) days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with SECTION 8.02(c) to act as a Successor Servicer and receives an Officer's Certificate of the Servicer to the effect that the Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall grant a Service Transferright of first refusal to the Transferor which would permit the Transferor at its option to purchase the Notes on the Distribution Date in the next calendar month. The Control Party may waive Indenture Trustee shall notify each Rating Agency of any default by the Issuer or Servicer Default of which a Responsible Officer has actual knowledge and shall provide each Rating Agency with a copy of any Termination Notice given to the Servicer and the Owner Trustee pursuant to this SECTION 8.01. The purchase price for the Notes purchased pursuant to the preceding paragraph shall be equal to the sum of the amounts specified therefor with respect to each outstanding Series in the performance related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of their obligations under this 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 its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedeach Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.02SECTION 8.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "Service TransferSERVICE TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, shall within twenty (x20) assisting any accountants selected by the Successor Servicer to verify collection Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. The predecessor Servicer shall be responsible for all such cash, checks and instruments 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 or the Trustee or its designee. At information of any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If kind which the Servicer fails deems to provide be confidential, the notice Successor Servicer shall be required to Obligors required 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 (1a) aboveabove for a period of ten (10) Business Days after the applicable grace period or under paragraph (b) or (c) above for a period of sixty (60) Business Days after the applicable grace period, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer 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 Trustee may direct the Obligors of Acquired Advances or Issuer, each Transferor and any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the IssuerSeries Enhancer with an Officer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a party, which failure continues unremedied for a period of ten days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following Upon the occurrence of a Servicer DefaultDefault with respect to any Series, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the and for so long as such Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party Default shall not have been remedied or waived, the right Trustee, at the direction of the Majority Certificateholders of such Series, by notice then given in writing to forgive the payment Applicable Master Servicer (such notice being a "Termination Notice"), shall terminate all but not less than all of principal or interest on any Note. Upon any the rights and obligations of such waiver of a past default, such default shall cease to exist, Applicable Master Servicer as servicer under this Agreement and any related Supplement with respect to each such default Series with respect to which such notice was so given. The Trustee shall not be deemed to have been remedied for every purpose knowledge of this Indenture. No such waiver shall extend a Servicer Default with respect to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedSeries until a Responsible Officer has received written notice thereof. After receipt by the any Applicable Master Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all authority and power of the such Master Servicer under this Indenture Agreement and any Supplements for any Series for which such Person acts as Master Servicer shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure of the such Master Servicer to cooperate) to execute and deliver, on behalf of the such Master Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the such Master Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Each Master Servicer hereby agrees to cooperate, at its expenseexpense (other than with respect to out-of-pocket costs and expenses payable to third parties (other than Affiliated Entities or their Affiliates or employees), which amounts shall be reimbursed by the Successor Servicer), with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the such Master Servicer to conduct servicing hereunderhereunder and under the applicable Supplements, including, without limitation, the transfer to such Successor Servicer of all authority of the such Master Servicer to service the Acquired Advances Receivables as provided under this IndentureAgreement and under the applicable Supplements, including all authority over all Collections which shall on the date of such Service Transfer be held by the such Master Servicer for deposit to any Lock-Box Account, the Master Collection Account, any Series Collection Account, any Series Payment Account, the Reserve Trustee's Account or the IssuerSeller's Account, for payment to any Claimant in respect of any Split Payment, or which have been deposited by the such Master Servicer to any Lock-Box Account, the Collection Account, any Series Collection Account, any Series Payment Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfersuccessor servicer. The Such Master Servicer shall, at its expenseexpense (other than with respect to out-of-pocket costs and expenses payable to third parties (other than Affiliated Entities or their Affiliates or employees), which amounts shall be reimbursed by the Successor Servicer), as soon as practicable, and in any event within five three Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs)disks, which evidence the Acquired Advances affected Series Receivables and the other Pledged Series Trust Assets, and which are necessary or desirable to collect the Acquired Advances affected Series 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances Receivables and Split Payments in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Wentworth J G & Co Inc)
Servicer Defaults. If any one of the following events (each being each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information deposit or credit to the Trustee Collection Account any amount required pursuant to Section 3.04(g)(vi) on or before the date such information is required under this Agreement to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee so deposited or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partycredited, which failure continues unremedied for a period of ten days two Business Days after discovery by the Servicer or receipt by the Servicer of written notice of such failure from the Issuer, the Indenture Trustee or the Insurer or after discovery of such failure by an officer of the Servicer;
(b) the Insurer, the Indenture Trustee or the Issuer shall not have received a report in accordance with Section 3.08 by the Servicer Report Date with respect to which such report is due and which shall continue unremedied for a period of one day after the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given;
(c) failure on the part of the Seller or the Servicer duly to observe or to perform any other covenants or agreements of the Seller or the Servicer set forth in this Agreement or any other Basic Document, which failure shall (i) materially and adversely affect the rights of the Noteholders, the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee and (ii) continue unremedied for a period of 30 days after the date on which the Seller, the Custodian or the Servicer shall have knowledge of such failure or written notice of such failure, requiring the same to be remedied, shall have been given (A) to the Seller or the Servicer, as the case may be, by the Insurer, the Issuer, the Owner Trustee or the Indenture Trustee or (B) to the Seller or the Servicer, as the case may be, and to the Issuer and the Indenture Trustee by Noteholders, acting together as a single class, evidencing in the aggregate not less than 25% of the Outstanding Principal Amount of the Notes or, so long as no Insurer Default has occurred and is continuing, by the Insurer;
(d) the entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the Servicer or the Seller in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or another present or future, federal or state, bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer or the Seller and the continu- ance of any such decree or order unstayed and in effect for a period of 60 consecutive days or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days;
(e) the commencement by the Servicer or the Seller of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future, federal or state, bankruptcy, insolvency or similar law, or the consent by the Servicer or the Seller to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer or the Seller or of any substantial part of its property or the making by the Servicer or the Seller of an assignment for the benefit of creditors or the failure by the Servicer or the Seller generally to pay its debts as such debts become due or the taking of corporate action by the Servicer or the Seller in furtherance of any of the foregoing;
(f) any merger or consolidation or sale of assets of the Servicer in violation of the covenant set forth in Section 6.02 hereof;
(g) the Servicer shall have failed in the reasonable opinion of the Insurer to service the Contracts in accordance with the Servicing Standards and such failure shall have continued unremedied for 30 days after written notice of such failure shall have been delivered to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or;
(ch) any representation, warranty or certification made by statement of the Servicer or the Seller made in this Indenture Agreement or the other Basic Documents or any certificate, report or other Transaction Document to which it is a party or in any certificate writing delivered pursuant to this Indenture or any other Transaction Document to which it is a party hereto shall prove to have been be incorrect in any material respect as of the time when made; or
the same shall have been made (d) excluding, however, any representation or warranty made in this Agreement or any other Basic Document as to which Section 2.03 or 3.06 shall be applicable so long as the Servicer or the Seller shall become subject to an Insolvency Event; or
(e) be in compliance with Section 2.03 or 3.06, as the case may be), and the incorrectness of such representation, warranty or statement has a final judgment is rendered against material adverse effect on the Originator while acting as Servicer in an amount greater than $1,000,000 Noteholders or the Insurer and, within 30 days after entry thereof, such judgment is not discharged or execution written notice thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) shall have been given to the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which Seller by the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Indenture Trustee or the Insurer (A) shall receive notice from Issuer or by Noteholders, acting together as a single class, evidencing in the Servicer that aggregate not less than 25% of the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that Outstanding Principal Amount of the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operationsNotes, or financial conditionso long as no Insurer Default has occurred, (2) has defaulted on any by the Insurer, the circumstance or condition in respect of its material obligations (other than those included in this Indenture)which such representation, warranty or (3) has ceased to conduct its business in the ordinary course; orstatement was incorrect shall not have been eliminated or otherwise cured;
(i) the subservicing agreement between World Omni Financial Corp. and the Servicer shall for any reason cease to be in full force and a successor Subservicer acceptable to the Insurer shall not be appointed within 60 days, or if any party thereto denies that it has any further liability thereunder or gives notice to such effect;
(j) the Indenture Trustee shall, for any reason, fail to comply have a valid perfected first priority security interest in any material respect with Contracts pledged by the Credit and Collection Policy in Issuer to the performance Indenture Trustee the outstanding aggregate Principal Balance of its duties hereunder; Following which exceeds 5.00% of the occurrence of a Servicer DefaultPool Balance;
(k) unless authorized under Section 5.02, the Control Party may among other things, declare Seller shall enter into any transaction described in Section 5.02 regardless of the surviving entity; or
(l) an Event of DefaultDefault as defined in the Insurance Agreement; then and in each and every case, deliver so long as such Servicer Default shall not have been remedied, (i) if no Insurer Default has occurred and is continuing, the Insurer or (ii) if an Insurer Default has occurred and is continuing, the Indenture Trustee acting at the direction of the Noteholders evidencing not less than 25% of the outstanding amount of the Notes, acting together as a Termination Notice single Class, by notice then given in writing to the Servicer (and effect a Service Transfer. The Control Party may waive any default to the Insurer, the Indenture Trustee and the Issuer if given by the Issuer or Noteholders) may terminate all the rights and obligations of the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any NoteAgreement. Upon any such waiver termination, termination of a past defaultthe Servicer as custodian, such default shall cease if the Servicer is acting as such, can be made pursuant to exist, and any such default shall be deemed to have been remedied for every purpose of this IndentureSection 2.08. No such waiver shall extend to any subsequent On or other default or impair any right consequent thereon except to after the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02such written notice, all authority and power of the Servicer under this Indenture shall Agreement, whether with respect to the Notes, the Contracts 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 Issuer are hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, deliver on behalf of the Servicer, as attorney-in 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 Contracts and related documents, or otherwise. The Servicer agrees to cooperate, at its expense, shall cooperate with the Trustee Indenture Trustee, the Insurer and such Successor Servicer the Issuer in (i) effecting the termination transfer of the responsibilities and rights of the Servicer under this Agreement (whether due to conduct servicing hereundertermination, includingresignation or otherwise), without limitation, including the transfer to the Indenture Trustee or such Successor Servicer Servicer, as applicable, for administration by it of all authority of cash amounts that (i) shall at the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer time be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountin, or which shall have been deposited by the Servicer to in, the Collection Account, Account or any other account, or which (ii) shall thereafter be received by it with respect to the Acquired Advances, and (ii) assisting any Contract. The predecessor Servicer shall pay all costs of the Successor Servicer until all servicing activities have been transferred associated with its transition to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the role of Successor Servicer (whether due to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shalltermination, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discsresignation or otherwise), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Auto Nations Receivables Corp)
Servicer Defaults. If any one Each of the following events (each being shall constitute a "Servicer Default:") shall occur and be continuing:
(a) any failure by the Servicer (i) shall fail to deliver any information remit or fail to cause to be remitted to the Trustee required pursuant to Section 3.04(g)(vi) Funding Agent on any day any Collections or before the date such information is Discount required to be given under remitted to the terms of this Indenture Funding Agent on such day and such failure shall remain unremedied continue for three (3) Business Days after the date when such Collections or Discount became due;
(b) the Servicer shall fail to deposit, or pay or fail to cause to be deposited or paid when due any other amount due hereunder, and any such failure shall continue for three (3) Business Days after written notice from thereof by the Trustee Funding Agent or the Insurer, (ii) to deliver any other information or reports Owner to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or;
(bc) any failure on the part of the Transferor or the Servicer to duly to observe or perform in any material respect any other covenants or agreements of the Transferor or the Servicer set forth in the Purchase Agreement, this Indenture Agreement or any of the other Transaction Program Documents to which it is a party, which failure continues unremedied for a period of ten twenty (20) days after the earlier of knowledge thereof or the date on which written notice thereofof such failure, requiring the same to be remedied, shall have been given to the Servicer Transferor or the Servicer, as applicable, by the Trustee, Funding Agent or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orOwner;
(cd) any representation, warranty warranty, certification or certification statement made by the Servicer in under this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered agreement, certificate, report, appendix, schedule or document furnished by the Servicer to any Owner or the Funding Agent pursuant to or in connection with this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect false or misleading in any respect material respect when made; or
to this Agreement or the transactions contemplated hereby as of the time made (d) the Servicer shall become subject including by omission of material information necessary to an Insolvency Event; ormake such representation, warranty, certification or statement not misleading);
(e) the entry of a final judgment is rendered against decree or order by a court or agency or supervisory authority having jurisdiction in the Originator while acting as Servicer premises for the appointment of a conservator, receiver or liquidator for the Transferor or the Servicer, in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshaling of assets and liabilities or execution thereof stayed pending appealsimilar proceedings, or within 10 days after for the expiration winding up or liquidation of their respective affairs, and the continuance of any such stay, such judgment is not dischargeddecree or order unstayed and in effect for a period of 60 consecutive days; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default consent by the Issuer Transferor or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Accountappointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or any other account, similar proceedings of or which shall thereafter be received with respect relating to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of Transferor or the Servicer and the Successor Servicer compatible or of or relating to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days substantially all of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available to the Successor Servicer their respective property; or the Trustee or its designee at a place selected by the Successor Servicer Transferor or the Trustee and Servicer shall admit in such form writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the Successor Servicer benefit of its creditors or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that voluntarily suspend payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesobligations.
Appears in 1 contract
Sources: Transfer and Administration Agreement (Navistar Financial Retail Receivables Corporation)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or to give notice to the Indenture Trustee to make such payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit or such instruction or notice is required to be made or given, as the case may be, under the terms of this Agreement the Indenture or any of the other Transaction Documents to which it is a party; orIndenture Supplement;
(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 Indenture or any of the other Transaction Documents to Agreement which it is a party, has an Adverse Effect and which failure continues unremedied for a period of ten 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes evidencing 10% or more of the aggregate unpaid principal amount of all Notes (or, with respect to any such failure that does not relate to all Series, 10% or more of the aggregate unpaid principal amount of all Series to which such failure relates); or the Servicer shall assign or delegate its duties under this Agreement, except as permitted by Sections 5.02 and 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 on the rights of the Noteholders of any Series (which determination shall be made without regard to whether funds are then available pursuant to any Series Enhancement) and which Adverse Effect continues for a period of 60 days after the date on which notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Owner Trustee or the Indenture Trustee, or to the Servicer Servicer, the Owner Trustee and the Indenture Trustee by any Noteholder the Holders of Notes evidencing 10% or the Insurer; assignment by the Servicer of its duties without (i) an express assumption more of the Servicer's obligations hereunder by aggregate unpaid principal amount of all Notes (or, with respect to any such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(c) any representation, warranty or certification made by that does not relate to all Series, 10% or more of the Servicer in this Indenture or any other Transaction Document aggregate unpaid principal amount of all Series to which it is a party such representation, warranty or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove to have been incorrect in any material respect when madecertification relates); or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer bankruptcy trustee, conservator, receiver, liquidator or similar official in an amount greater than $1,000,000 andany bankruptcy proceeding or other insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a bankruptcy trustee, conservator, receiver, liquidator or similar official in any Affiliate bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall fail admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any principal applicable bankruptcy, insolvency or reorganization statute, make any assignment for the benefit of its creditors or premium or interest on voluntarily suspend payment of its obligations; then, in the event of any Debt for which Servicer Default, so long as the Servicer is liable (whether as a primary Default shall not have been remedied, either the Indenture Trustee or secondary party) if the Holders of Notes evidencing more than 50% of the aggregate unpaid principal amount of such Debt is $250,000 or moreall Notes, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice then given to the Servicer and effect a Service Transfer. The Control Party may waive any default the Owner Trustee (and to the Indenture Trustee if given by the Issuer or Noteholders) (a “Termination Notice”), may terminate all but not less than all the rights and obligations of the Servicer in the performance of their obligations as Servicer under this Indenture and its consequences, Agreement; provided, however, if within 60 days of receipt of a Termination Notice the Indenture Trustee does not receive any bids from Eligible Servicers in accordance with subsection 7.02(c) to act as a Successor Servicer and receives an Officer’s Certificate of the Servicer to the effect that the Control Party Servicer cannot in good faith cure the Servicer Default which gave rise to the Termination Notice, the Indenture Trustee shall not have grant a right of first refusal to the right Transferor which would permit the Transferor at its option to forgive acquire the payment of principal or interest Notes on any Notethe Distribution Date in the next calendar month. Upon any such waiver of a past default, such default shall cease to exist, and any such default The price for the Notes shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except equal to the extent expressly so waivedsum of the amounts specified therefor with respect to each outstanding Series in the related Indenture Supplement. The Transferor shall notify the Indenture Trustee prior to the Record Date for the Distribution Date of the acquisition if it is exercising such right of first refusal. If the Transferor exercises such right of first refusal, the Transferor shall deposit the price into the Collection Account not later than 1:00 p.m., New York City time, on such Distribution Date in immediately available funds. The price shall be allocated and distributed to Noteholders in accordance with the terms of the Indenture and each Indenture Supplement. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been is appointed by the Indenture Trustee pursuant to Section 10.027.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such the Successor Servicer (a "“Service Transfer"”); and, without limitation, the Indenture Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer. The Servicer agrees to cooperate, at its expense, 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 hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall within 20 Business Days transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trustee, and, promptly upon receipt, remit all continued servicing of the Receivables in the manner and at such cash, checks and instruments 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 or information of any kind which the Trustee or 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 designeeinterests. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances shall pay to the related Obligors Indenture Trustee and direct that payments be made directly 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 the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1a) aboveabove 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 Trustee may direct exercise of reasonable diligence by the Obligors Servicer and such delay or failure was caused by an act of Acquired Advances God or any the public enemy, acts of themdeclared or undeclared war, that payment acts of terrorism, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using all amounts payable under any such Acquired Advances be made directly commercially reasonable efforts to perform its obligations in a timely manner in accordance with the Trustee or its designee;
(3) Each terms of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in Servicer shall provide the determination of the Indenture Trustee, to collect all amounts due under Owner Trustee, each Transferor and any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect Series Enhancer with an Officer’s Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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 (HSBC Credit Card Master Note Trust (Usa) I)
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 (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before to give instructions or notice to the Trustee pursuant to Article IV or to instruct the Trustee to make any required drawing, withdrawal, or payment under any Enhancement, in each case, within one Business Day after the date of the receipt by the Servicer of written notice from the Trustee or any Purchaser Representative that such payment, transfer transfer, deposit, withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture Agreement, any Supplement or any of the other Transaction Documents to which it is a party; orReceivables Purchase Agreement;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Agreement, any Supplement or any Receivables Purchase Agreement, which has a material adverse effect on (i) the Servicer’s ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the other Transaction Documents to Receivables, and which it is a party, which failure continues unremedied for a period of ten 45 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 Trustee, a Purchaser Representative or an Enhancement Provider, or to the Servicer and the Trustee by Holders of Investor Certificates evidencing not less than 25% of the Investor Interest of any Noteholder Certificate Series, or an Enhancement Provider and such material adverse effect continues for such period; or the Insurer; assignment by the Servicer of shall delegate its duties without (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; orexcept as permitted by Section 8.7;
(c) any representation, warranty or certification made by the Servicer in this Indenture Agreement, any Supplement or any other Transaction Document to which it is a party Receivables Purchase Agreement or in any certificate delivered pursuant to this Indenture Agreement, any Supplement or any other Transaction Document to which it is a party Receivables Purchase Agreement shall prove to have been incorrect when made, which has a material adverse effect on (i) the Servicer’s ability to collect the Receivables or otherwise perform its obligations under the Agreement, any Supplement or any Receivables Purchase Agreement or (ii) the collectibility or value of the Receivables, and which continues to be incorrect in any material respect when madefor a period of 45 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, a Purchaser Representative, or an Enhancement Provider or to the Servicer and the Trustee by the Holders of Investor Certificates evidencing not less than 25% of the Investor Interest of any Certificate Series or an Enhancement Provider and such material adverse effect continues for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Originator while acting Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, commence or have commenced against it (unless dismissed within thirty days) as debtor a proceeding under any applicable insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Trust Interests and Purchaser Representatives of Receivables Purchase Series aggregating more than 66-2/3% of the Aggregate Investor/Purchaser Interest, by notice then given in writing to the Servicer, and each Purchaser Representative (and to the Trustee if given by the Investor Certificateholders or the Purchaser Representatives) (a “Servicer Termination Notice”), may terminate all of the rights and obligations of the Servicer as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration under this Agreement. The Trustee shall promptly notify any Enhancement Provider of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, Account or any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) in assisting the Successor Servicer in making enforcing all rights to Insurance Proceeds applicable to the computer systems of Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Servicer and Receivables to the Successor Servicer compatible in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments rights and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable obligations under any Enhancement with respect to collect the Acquired Advances and shall make the same available any Series to the Successor Servicer. Notwithstanding the foregoing, a delay in or failure of performance referred to in subsection 10.1(a), for a cumulative period of ten Business Days, or under subsection 10.1(b) or (c), for a cumulative period of sixty Business Days, shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the Trustee public enemy, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Servicer from using its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time best efforts to time constituting Collections of Acquired Advances perform its obligations in a timely manner acceptable to in accordance with the Successor terms of this Agreement and the Servicer and shall provide the Trustee, andany Enhancement Provider, promptly upon receiptthe Seller, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give each Purchaser Representative with an Officer’s Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Alliance Data Systems Corp)
Servicer Defaults. If any one of the following events (each being a "Servicer Default") shall occur and be continuingcontinuing with respect to the Servicer:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit deposit, or to give instructions or notice to the Trustee to make such payment, transfer or deposit, or to give notice to the Trustee as to any action to be taken under any Enhancement Agreement, in any case on or before the date occurring two (2) Business Days after receipt of written notice of such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orfailure;
(b) failure on the part of the Servicer duly to observe or perform its covenant not to create any lien on any Receivable, which failure has a material adverse effect on the Certificateholders and which continues unremedied for a period of thirty (30) days; provided, however, that a Servicer Default shall not be deemed to have occurred if the Depositor shall have repurchased the affected Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Agreement; (c) failure on the part of the Servicer duly to observe or perform any other covenants or agreements of the Servicer set forth in this Indenture Agreement, including the delivery of any annual report or any of the other Transaction Documents certificate pursuant to which it is a partySections 3.05 or 3.06 hereof, which failure has a material adverse effect on the Certificateholders and which continues unremedied uncured for a period of ten thirty (30) days (or, upon delivery to the Trustee and to Certificateholders of a Servicer Default Certificate, such longer period as may be reasonably necessary to effect a cure) after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment receipt by the Servicer of its duties without written notice of such failure; (i) an express assumption of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; or
(cd) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture Agreement (including any certificates or any other Transaction Document statements delivered pursuant to which it is a party the requirements of Section 3.04 and Section 3.05) shall prove to have been materially incorrect when made and which continues to be incorrect in any material respect when made; or
for a period of thirty (d30) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution receipt of written notice thereof stayed pending appeal, or within 10 days after and as a result of which the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate interests of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due Certificateholders are materially and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debtadversely affected; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party a Servicer Default shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose occurred if the Depositor shall have repurchased the affected Receivables or, if applicable, all of the Receivables during such period in accordance with the provisions of this Indenture. No such waiver Agreement; or (e) the Servicer shall extend consent to any subsequent the appointment of a conservator or receiver or liquidator or other default similar official in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or impair any right consequent thereon except similar proceedings of or relating to the extent expressly Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; 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 (any such event, an "Insolvency Event"). In the event of any Servicer Default, so waivedlong as such Servicer Default shall not have been remedied, the Trustee or the Holders pursuant to a Consent of Certificateholders, by notice then given in writing to the Servicer (a Termination Notice), may terminate all but not less than all of the rights and obligations (other than its obligations that have accrued up to the time of such termination) of the Servicer as Servicer under this Agreement and in and to the Receivables and the proceeds thereof. The Trustee shall give prompt written notice of any such event to the Rating Agencies, as well as any waivers or cures of any such event promptly after receipt of written notice thereof. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.02 hereof, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer"); ) and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfer; provided, however, that in no event shall the Servicer incur any liability for any such action taken by the Trustee. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Receivables. The Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection shall promptly transfer its electronic records and reports made prior relating to the Service Transfer and (y) assisting Receivables to the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the Trusteecontinued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. Gottschalks, andas Servicer also agrees to provide such access, promptly upon receipt, remit all such cash, checks computer time and instruments personnel to the Successor Servicer as shall be necessary in order to assist the Successor Servicer in assuming its duties hereunder. To the extent that compliance with this Section 10.01 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interest. Notwithstanding the foregoing, a delay in or failure of performance under subsection (a) of this Section 10.01 for a period of up to five (5) Business Days after the applicable grace period, or a delay in or failure of performance (or the Trustee continuance of any such delay or its designee. At any time following failure) under subsection (b), (c) or (d) of this Section 10.01 for a Termination Notice:
period of up to thirty (130) The Servicer shallBusiness Days (or, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly upon delivery to the Trustee and Certificateholders of a Servicer Default Certificate, such longer period as is reasonably necessary to effect a cure) shall not constitute a Servicer Default if such delay or its designee;
(2) If failure or continuance was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer fails of its obligation to provide use its best efforts to perform its respective obligations in a timely manner in accordance with the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors terms of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer this Agreement and the Noteholders necessary or desirable, in the determination of Servicer shall provide the Trustee, to collect all amounts due under any Enhancement Providers and all Acquired Advances, including, without limitation, endorsing the IssuerDepositor with an Officer's name on checks and other instruments representing Collections in respect Certificate giving prompt notice of such Acquired Advances and enforcing such Acquired Advancesfailure 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
Servicer Defaults. 4.1 SERVICER DEFAULTS If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any other respect any of the covenants or agreements of the Servicer or Co-Servicer set forth in this Indenture Agreement or any Relevant Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Beneficiaries as a whole or of the Investor Beneficiaries of any - 11 - Applicable Series and which it is a party, which failure continues unremedied for a period of ten 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 Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Co-Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Agreement to any other entity, except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries of any Applicable Series and continues to be incorrect in any material respect when made; for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series 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 affected for such period;
(d) the Servicer or any Co-Servicer shall become subject consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an Insolvency Event; ororder of the court is made for its winding-up, dissolution, administration or reorganisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration duly authorised officer of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Co-Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified admit in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer writing that the Servicer or such Co-Servicer is no longer able unable to discharge pay its duties under this Indenture debts as they fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or such Co-Servicer makes a general as▇▇▇▇▇▇▇▇ ▇▇▇ the benefit of or a composition with its creditors or voluntarily suspends payment of its obligations with a view to the general readjustment or rescheduling of its indebtedness, then so long as such Servicer Default shall not have been remedied the Beneficiaries acting together or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that as the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(icase may be) the Servicer shall fail to comply Investor Beneficiaries representing in any material respect with aggregate more than 66 2/3% of the Credit and Collection Policy Aggregate Investor Interest, by notice then given in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default by or, if applicable, the Issuer or the Co-Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except (copied to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer Receivables Trustee) (a "Service TransferTERMINATION NOTICE"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure may terminate all of the Servicer to cooperate) to execute rights 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the Successor avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer compatible and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the extent necessary to effect exercise of reasonable diligence by the Service TransferServicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer shallor Co-Servicer from using 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, at its expenseif applicable, within five Business Days the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such Service Transferfailure or delay by it, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available to the Successor Servicer or the Trustee or its designee at together with a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice description of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
Appears in 1 contract
Sources: Beneficiaries Servicing Agreement (Gracechurch Receivables Trustee LTD)
Servicer Defaults. If The happening of any one or more of the following events (each being shall constitute a "Servicer Default") shall occur and be continuingDefault hereunder:
(a) any Any failure by the Servicer (i) to deliver make any information to the Trustee required pursuant to Section 3.04(g)(vi) on payment, deposit, advance or before the date such information is transfer of funds required to be given paid, deposited, advanced or transferred under the terms of this Indenture Agreement, and such failure shall remain continues unremedied for three five (5) Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms discovery by Servicer of this Indenture and such failure shall (in the case or receipt by Servicer of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date of such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orfailure;
(b) any failure Failure on the part of the Servicer duly to observe or perform in any other material respect any of the covenants or agreements contained in this Agreement or the Supervisory Servicing Agreement which continues unremedied for thirty (30) days after the earlier to occur of the Servicer set forth in this Indenture obtaining actual knowledge of such failure or any the Servicer's receipt of written notice of such failure or breach as the case may be; provided, 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 Servicer gives notice to the Trustee and the Supervisory Servicer of the other Transaction Documents corrective action it proposes to which it is a partytake, which failure continues unremedied corrective action is agreed in writing by the Trustee to be satisfactory and the Servicer shall thereafter pursue such corrective action diligently until such default is cured but in no event longer than ninety (90) days;
(c) A decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer, and such decree or order shall have remained in force undischarged or unstayed for a period of ten days after ninety (90) days;
(d) The Servicer shall consent to the date on which written notice thereofappointment of a conservator or receiver or liquidator in any insolvency, requiring the same to be remediedreadjustment of debt, shall have been given marshaling of assets and liabilities or similar proceedings of or relating to the Servicer by the Trustee, or of or relating to the Servicer and the Trustee by any Noteholder all or the Insurer; assignment by the Servicer substantially all of its duties without property;
(ie) 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 insolvency or reorganization statute, make an express assumption assignment for the benefit of its creditors or voluntarily suspend payments of its obligations;
(f) The Servicer shall cease to be an Eligible Servicer;
(g) A material adverse change occurs in the financial condition of the Servicer's obligations hereunder by such assignee, (ii) to which change materially impairs the extent ability of the Servicer is the Originator, continued performance of to perform its obligations under the Purchase and Contribution this Agreement, and/or (iii) rating agency consent; or
(ch) any representation, Any representation or warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove proves to have been incorrect in any material respect when made; or
(d) the Servicer shall become subject to an Insolvency Event; or
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, effect on the Noteholders and which continues to have a material adverse effect or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply be incorrect in any material respect with the Credit and Collection Policy in the performance for a period of its duties hereunder; Following the occurrence thirty (30) days after written notice of a Servicer Defaultsuch inaccuracy, the Control Party may among other thingsrequiring it to be remedied, declare an Event of Default, deliver a Termination Notice has been given to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer Trustee, the Supervisory Servicer or the Servicer in the performance of their obligations under this Indenture and its consequences, any Noteholder; provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any if such waiver inaccuracy is of a past default, nature that it cannot be remedied within such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by 30-day period the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant gives notices to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service Transfer"); and, without limitation, the Trustee is hereby authorized, empowered and 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, at its expense, with the Trustee and such Successor the Supervisory Servicer in (i) effecting the termination of the responsibilities corrective action it proposes to take, which corrective action is agreed in writing by the Trustee to be satisfactory and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to shall thereafter pursue such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on corrective action diligently until such default is cured but in no event longer than ninety (90) days from the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems of the Servicer and the Successor Servicer compatible to the extent necessary to effect the Service Transfer. The Servicer shall, at its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advancesnotice.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on deposit, or, if applicable, to give instructions or before notice to the date Trustee to make such payment, transfer or deposit is required deposit, or to give notice to the Trustee as to any action to be made taken under POOLING AND SERVICING AGREEMENT any Enhancement Agreement, or to provide a Monthly Servicer's Report to the terms of this Indenture or any of Trustee, in each case, within two Business Days after the other Transaction Documents to which it is a partysame shall become due; or
(b) any failure on the part of the Servicer duly shall fail to observe or perform any other covenants covenant or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents agreement applicable to which it is a partycontained herein, which failure continues unremedied for a period of ten 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 TrusteeTrustee or an Enhancement Provider, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer holders of its duties without (i) an express assumption Investor Certificates evidencing not less than 25% of the Servicer's obligations hereunder by such assignee, (ii) to the extent the Servicer is the Originator, continued performance Series Invested Amount of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consentany Series or an Enhancement Provider; or
(c) any representation, warranty or certification made or deemed made by the Servicer under or in this Indenture or connection with any other Transaction Document to which it is a party Document, or in any certificate or information delivered pursuant to this Indenture or in connection with any other Transaction Document to which it is a party shall prove to have been incorrect in on or as of the date made or deemed made, which continues to be incorrect 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 an Enhancement Provider, or to the Servicer and the Trustee by holders of Investor Certificates evidencing not less than 25% of the Series Invested Amount of any material respect when madeSeries or an Enhancement Provider; or
(d) the Servicer shall become subject to an Insolvency EventEvent shall occur with respect to the Servicer; or
(e) a final judgment is rendered against the Originator while acting Servicer assigns its duties under this Agreement, except as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration of any such stay, such judgment is not dischargedspecifically permitted by Section 8.02; or
(f) The Servicer shall at any time fail to have Consolidated Tangible Net Worth of at least $250,000; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the holders of Investor Certificates evidencing Undivided Trust Interests aggregating more than 66 2/3% of the Aggregate Invested Amount, by notice then given in writing to the Servicer or any Affiliate (and to the Trustee if given by the Investor Certificateholders) (a "SERVICER TERMINATION NOTICE"), may terminate all of the rights and obligations of the Servicer as Servicer under this Agreement. The Trustee shall fail to pay promptly notify any principal Enhancement Provider of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect Servicer Default of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by which a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate Responsible Officer of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedactual Knowledge. After receipt by the Servicer of a such Servicer Termination Notice, and on the date that a Successor Servicer shall have been appointed accepts its appointment as such by the Trustee pursuant to Section 10.02, all authority and power of the Servicer under this Indenture Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and POOLING AND SERVICING AGREEMENT empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, hereunder including the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Concentration Account, any Collection Account, the Excess Funding Account or any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) in assisting the Successor Servicer in making enforcing all rights to Insurance Proceeds applicable to the computer systems of Trust. The Servicer shall promptly transfer its electronic records or electronic copies thereof relating to the Servicer Receivables, the Accounts and the other Trust Assets to the Successor Servicer compatible in such electronic form as the Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables, 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 necessary to effect the Service Transferprotect its interests. The Servicer shall, at on the date of any servicing transfer, transfer all of its expenserights and obligations under any Enhancement with respect to any Series to the Successor Servicer. Notwithstanding the foregoing, within a delay in or failure of performance referred to in Section 10.01(a) or (b), for a cumulative period of five Business Days shall not constitute a Servicer Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such Service Transferdelay or failure was caused by an act of God or the public enemy, (A) assemble such documentsacts of declared or undeclared war, instruments and other records (including computer tapes and discs)public disorder, which evidence rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power outages or similar causes. The preceding sentence shall not relieve the Acquired Advances Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and Servicer 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and provide the Trustee, and, promptly upon receipt, remit all such cash, checks any Enhancement Provider and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the TrusteeTransferor with an Officer's request and at the Servicer's expense, give Certificate giving prompt notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee such failure or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) abovedelay by it, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each together with a description of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits 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 (each being a "Servicer Default") shall occur and be continuing:: ----------------
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit or to give instructions or notice to the 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 transfer, deposit withdrawal or deposit drawing or such instruction or notice is required to be made or given, as the case may be, under the terms of this Indenture or any of the other Transaction Documents to which it is a party; orAgreement;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture or any of the other Transaction Documents to which it is a partyAgreement, which failure has a material adverse effect on the Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues unremedied for a period of ten 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 Trustee, or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Servicer's obligations hereunder by such assignee, Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or the Servicer is the Originator, continued performance of shall delegate its obligations duties under the Purchase and Contribution this Agreement, and/or (iii) rating agency consentexcept as permitted by Section 8.7; or-----------
(c) any representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party Agreement shall prove to have been incorrect when made, which has a material adverse effect on the Certificateholders of any Series (which determination shall be made without regard to whether funds are available to the Certificateholders of any Series under any applicable Enhancement) and which continues to be incorrect in any material respect when madefor a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee, or to the Servicer and the Trustee by (i) the Holders of Investor Certificates evidencing Undivided Interests aggregating not less than 50% of the Investor Interest of any Series adversely affected thereby or (ii) to the extent provided in any Supplement by the related Enhancement Provider, and continues to materially adversely affect such Investor Certificateholders for such period; or
(d) the Servicer shall become subject consent to an Insolvency Event; or
(e) the appointment of a final judgment is rendered against the Originator while acting as Servicer conservator or receiver or liquidator in an amount greater than $1,000,000 andany insolvency, within 30 days after entry thereofreadjustment of debt, such judgment is not discharged marshalling of assets and liabilities or execution thereof stayed pending appeal, similar proceedings of or within 10 days after the expiration of any such stay, such judgment is not discharged; or
(f) relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator or receiver or liquidator in any Affiliate 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 insolvency or reorganization statute, make any assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; then, so long as such Servicer Default shall not have been remedied, either the Trustee, or the Holders of Investor Certificates evidencing Undivided Interests aggregating more than 50% of the Aggregate Investor Interest, by notice then given in writing to the Servicer (and to the Trustee if given by the Investor Certificateholders) (a "Termination Notice"), may terminate all of the ------------------ rights and obligations of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which the as Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer that the Servicer is no longer able to discharge its duties under this Indenture or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waivedAgreement. After receipt by the Servicer of a such Termination Notice, and on the date that a Successor Servicer shall have been appointed by the Trustee pursuant to Section 10.0210.2, all authority and power of the Servicer under this Indenture ------------ Agreement shall pass to and be vested in such a Successor Servicer (a "Service Transfer")Servicer; and, without limitation, the Trustee is hereby authorized, authorized and empowered and instructed (upon the failure of the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in in-fact or otherwise, all documents and other instruments upon the failure of the Servicer to execute or deliver such documents or instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such Service Transfertransfer of servicing rights and obligations. The Servicer agrees to cooperate, at its expense, cooperate with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, hereunder including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as Receivables provided for under this IndentureAgreement, including including, without limitation, all authority over all Collections which shall on the date of such Service Transfer transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Accountdeposit, or which have been deposited by the Servicer to Servicer, in the Collection Account, or the Excess Funding Account, and any other accountSeries Account, or which shall thereafter be received with respect to the Acquired AdvancesReceivables, and (ii) in assisting the Successor Servicer until and in enforcing all servicing activities have been transferred rights to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records Recoveries and reports made prior Interchange allocable to the Service Transfer and (y) assisting Trust. The Servicer shall promptly transfer its electronic records relating to the Receivables to the Successor Servicer in making such electronic form as the computer systems Successor Servicer may reasonably request and shall promptly transfer to the Successor Servicer all other records, correspondence and documents necessary for the continued servicing of the Receivables in the manner and at such times as the Successor Servicer shall reasonably request. To the extent that compliance with this Section 10.1 shall require the Servicer to ------------ disclose to the Successor Servicer information of any kind which the Servicer reasonably deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interests. Subject to the immediately preceding sentence, the Servicer agrees to grant to the Successor Servicer an exclusive, non-transferrable, non-assignable license to utilize the software which is owned by the Servicer and which is used by the Servicer in connection with the servicing of the Accounts and the Receivables; provided, however, that such software shall be used by the -------- ------- Successor Servicer compatible to solely for the extent necessary to effect purposes of servicing the Service TransferAccounts and the Receivables. The Servicer shall, at on the date of any servicing transfer, transfer all of its expense, within five Business Days of such Service Transfer, (A) assemble such documents, instruments rights and other records (including computer tapes and discs), which evidence obligations under the Acquired Advances and the other Pledged Assets, and which are necessary or desirable Enhancement with respect to collect the Acquired Advances and shall make the same available any Series to the Successor Servicer or the Trustee or its designee at a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advances.
Appears in 1 contract
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 (i) to deliver any information give advice or notice to the Receivables Trustee required pursuant to Section 3.04(g)(vi) an agreed schedule of collections and allocations or to advise the Receivables Trustee to make any required drawing, withdrawal or payment pursuant to the Relevant Documents including under the documents governing any Enhancement on or before the date occurring five (5) Business Days after the date such information drawing, withdrawal or payment or such advice or notice is required to be given made or given, as the case may be, under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture Deed or any of the other Transaction Documents to which it is a party; orRelevant Document;
(b) any failure on the part of the Servicer duly to observe or perform in any respect any other covenants or agreements of the Servicer set forth in this Indenture Deed or any other Relevant Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Investor Beneficiaries in respect of any Outstanding Series and which it is a party, which failure continues unremedied for a period of ten sixty (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 Receivables Trustee, or to the Servicer and the Receivables Trustee by any Noteholder or the Insurer; assignment by the Servicer of its duties without (i) an express assumption a majority of the Servicer's obligations hereunder by Beneficiaries, and continues to have a Material Adverse Effect on the interests of such assignee, (ii) to the extent the Servicer is the Originator, continued performance Beneficiaries in respect of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orsuch Outstanding Series for such period;
(c) any relevant representation, warranty or certification made by the Servicer in this Indenture or any other Transaction Document to which it is a party Deed or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Beneficiaries in respect of any Outstanding Series and continues to be incorrect in any material respect when made; orfor a period of sixty (60) days after the date on which written notice of such incorrectness, requiring the same to be remedied, shall have been given to the Servicer by the Receivables Trustee or to the Servicer and the Receivables Trustee by a majority of the Beneficiaries, and continues to have a Material Adverse Effect on the interest of such Beneficiaries in respect of such Outstanding Series for such period;
(d) an order of the court is made for the winding-up, dissolution, administration or reorganisation (except for a solvent re-organisation) of the Servicer and such order shall become subject to an Insolvency Event; orhave remained in force undischarged or unstayed for a period of sixty (60) days;
(e) a final judgment receiver, administrator, administrative receiver, liquidator, trustee or similar officer is rendered against legally and validly appointed over the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after relating to all of the expiration of any such stay, such judgment is not discharged; orServicer's revenues and assets;
(f) the Servicer shall consent to or take any Affiliate corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an order of the court is made for its winding-up, dissolution, administration or re-organisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(g) a duly authorised officer of the Servicer shall fail to pay any principal of or premium or interest on any Debt for which admit in writing that the Servicer is liable (whether unable to pay its debts as they fall due within the meaning of Section 123(1) of the Insolvency ▇▇▇ ▇▇▇▇ or the Servicer makes a primary general assignment for the benefit of or secondary party) if the aggregate principal amount a composition with its creditors or voluntarily suspends payment of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by its obligations with a regularly scheduled required prepayment) prior view to the stated maturity thereof; or
(g) if the Servicer is the Originator general readjustment or an Affiliate rescheduling of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p)its indebtedness; or
(h) the Trustee or the Insurer (A) shall receive notice from delegation by the Servicer that the Servicer is no longer able to discharge of its duties under this Indenture or Deed except as permitted by Clause 11.6 (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire servicesDelegation of Duties), which they reasonably believe has a Material Adverse Effect on the interests of the Beneficiaries in good faith to be reliable, that the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on respect of any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(i) the Servicer shall fail to comply in any material respect with the Credit and Collection Policy in the performance of its duties hereunder; Following the occurrence of a Servicer DefaultOutstanding Series, the Control Party may among other thingsReceivables Trustee, declare an Event of Default, deliver a Termination Notice by notice in writing to the Servicer and effect a Service Transfer. The Control Party may waive any default by the Issuer or the Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer (a "Service TransferServicer Termination Notice"); and, without limitation, ) may terminate all of the Trustee is hereby authorized, empowered rights and instructed (upon the failure obligations of the Servicer as Servicer under this Deed. If the Receivables Trustee at any time becomes entitled to cooperate) give a Servicer Termination Notice, it shall give such a notice if requested to execute and deliver, on behalf do so by a majority of the ServicerInvestor Beneficiaries and shall not give such a notice without the prior agreement of a majority of the Investor Beneficiaries. Notwithstanding the foregoing, as attorney-a delay in fact or otherwise, all documents and other instruments upon the failure of performance or lack of correctness referred to in paragraph (a) above for a period of five Business Days or under paragraph (b) or (c) above for a period of 60 days shall not constitute a Servicer Default if such delay or failure could not have been prevented by the 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 exercise of such Service Transfer. The Servicer agrees to cooperate, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held reasonable diligence by the Servicer for deposit to the Collection Accountand such delay or failure was caused by an act of God, the Reserve Account acts of declared or the Issuer's Accountundeclared war, public disorder, rebellion, riot or which have been deposited by sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its obligations in a timely manner in accordance with the Collection Accountterms of this Deed and any relevant agreement and the Servicer shall provide the Receivables Trustee, any Enhancement Provider and the Transferor with an Officer's Certificate giving prompt notice of such failure or any other accountdelay by it, or which shall thereafter be received together with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems a description of the Servicer cause of such failure or delay and the Successor Servicer compatible its efforts so to the extent necessary to effect the Service Transferperform its obligations. The Servicer shall, at its expense, within five Business Days Receivables Trustee shall promptly forward a copy of such Service Transfer, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable Officer's Certificate to collect the Acquired Advances 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 form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect of such Acquired Advances and enforcing such Acquired Advanceseach Beneficiary.
Appears in 1 contract
Servicer Defaults. If any one of the following events (each being a "Servicer DefaultSERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer (i) to deliver any information to the Trustee required pursuant to Section 3.04(g)(vi) on or before the date such information is required to be given under the terms of this Indenture and such failure shall remain unremedied for three Business Days after written notice from the Trustee or the Insurer, (ii) to deliver any other information or reports to the Trustee required pursuant to Section 3.04(g) (including, without limitation, the failure to deliver any Servicer's Daily Report or Monthly Report) on or before the date such information, Servicer's Daily Report or Monthly Report is required to be given or made under the terms of this Indenture and such failure shall (in the case of any report other than a Servicer's Daily Report or Monthly Report) remain unremedied for ten Business Days after written notice from the Trustee or the Insurer, or (iii) to make any payment, transfer or deposit on or before the date such payment, transfer or deposit is required to be made under the terms of this Indenture or any of the other Transaction Documents to which it is a party; or
(b) any failure on the part of the Servicer or any Co-Servicer duly to observe or perform in any other respect any of the covenants or agreements of the Servicer or Co-Servicer set forth in this Indenture Agreement or any Relevant Document which has a Material Adverse Effect on the interests of the other Transaction Documents to Beneficiaries as a whole or of the Investor Beneficiaries of any Applicable Series and which it is a party, which failure continues unremedied for a period of ten 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 Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series adversely affected thereby (copied to the Receivables Trustee) and continues to have a Material Adverse Effect on the interests of an Investor Beneficiary of any Applicable Series for such period;
(b) delegation by the Trustee, Servicer or to the Servicer and the Trustee by any Noteholder or the Insurer; assignment by the Co-Servicer of its duties without (i) an express assumption of the Servicer's obligations hereunder under this Agreement to any other entity, except as permitted by such assignee, (ii) to the extent the Servicer is the Originator, continued performance of its obligations under the Purchase and Contribution Agreement, and/or (iii) rating agency consent; orClause 3.7;
(c) any relevant representation, warranty or certification made by the Servicer or any Co-Servicer in this Indenture or any other Transaction Document to which it is a party Agreement or in any certificate delivered pursuant to this Indenture or any other Transaction Document to which it is a party shall prove hereto proves to have been incorrect when made, which has a Material Adverse Effect on the interests of the Investor Beneficiaries of any Applicable Series and continues to be incorrect in any material respect when made; for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer or, if applicable, any Co-Servicer by an Investor Beneficiary or Investor Beneficiaries representing in aggregate more than one-half of the aggregate Investor Interests of any Applicable Series 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 affected for such period;
(d) the Servicer or any Co-Servicer shall become subject consent to or take any corporate action relating to the appointment of a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all or substantially all of its revenues and assets or an Insolvency Event; ororder of the court is made for its winding-up, dissolution, administration or reorganisation (except for a solvent re-organisation) and such order shall have remained in force undischarged or unstayed for a period of 60 days or a receiver, administrator, administrative receiver, liquidator, trustee or similar officer of it or relating to all of its revenues and assets is legally and validly appointed;
(e) a final judgment is rendered against the Originator while acting as Servicer in an amount greater than $1,000,000 and, within 30 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 10 days after the expiration duly authorised officer of any such stay, such judgment is not discharged; or
(f) the Servicer or any Affiliate of the Co-Servicer shall fail to pay any principal of or premium or interest on any Debt for which the Servicer is liable (whether as a primary or secondary party) if the aggregate principal amount of such Debt is $250,000 or more, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall continue after the applicable grace period, if any, specified admit in the agreement or instrument relating to such Debt; or any other default under any agreement or instrument relating to any such Debt or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default or event is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required prepayment) prior to the stated maturity thereof; or
(g) if the Servicer is the Originator or an Affiliate of the Originator, the occurrence of any Wind Down Event specified in Section 9.01(l) or (p); or
(h) the Trustee or the Insurer (A) shall receive notice from the Servicer writing that the Servicer or such Co-Servicer is no longer able unable to discharge pay its duties under this Indenture debts as they fall due within the meaning of Section 123(1) of the Insolvency Act 1986 or the Servicer or s▇▇▇ ▇▇-▇ervicer makes a general assignment for the benefit of or a composition with its creditors or voluntarily suspends payment of its obligations with a view to the general readjustment or rescheduling of its indebtedness, then so long as such Servicer Default shall not have been remedied the Beneficiaries acting together or (B) shall determine, in their respective reasonable judgment and based upon published reports (including wire services), which they reasonably believe in good faith to be reliable, that as the Servicer (1) has experienced a material adverse change in its business, assets, liabilities, operations, or financial condition, (2) has defaulted on any of its material obligations (other than those included in this Indenture), or (3) has ceased to conduct its business in the ordinary course; or
(icase may be) the Servicer shall fail to comply Investor Beneficiaries representing in any material respect with aggregate more than 66 2/3% of the Credit and Collection Policy Aggregate Investor Interest, by notice then given in the performance of its duties hereunder; Following the occurrence of a Servicer Default, the Control Party may among other things, declare an Event of Default, deliver a Termination Notice writing to the Servicer and effect a Service Transfer. The Control Party may waive any default by or, if applicable, the Issuer or the Co-Servicer in the performance of their obligations under this Indenture and its consequences, provided, however, that the Control Party shall not have the right to forgive the payment of principal or interest on any Note. Upon any such waiver of a past default, such default shall cease to exist, and any such default shall be deemed to have been remedied for every purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon except (copied to the extent expressly so waived. After receipt by the Servicer of a Termination Notice, and on the date that a Successor Servicer shall have been appointed pursuant to Section 10.02, all authority and power of the Servicer under this Indenture shall pass to and be vested in such Successor Servicer Receivables Trustee) (a "Service TransferTERMINATION NOTICE"); and, without limitation, the Trustee is hereby authorized, empowered and instructed (upon the failure may terminate all of the Servicer to cooperate) to execute rights 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, at its expense, with the Trustee and such Successor Servicer in (i) effecting the termination of the responsibilities and rights of the Servicer to conduct servicing hereunder, including, without limitation, the transfer to such Successor Servicer of all authority of the Servicer to service the Acquired Advances as provided under this Indenture, including all authority over all Collections which shall on the date of such Service Transfer be held by the Servicer for deposit to the Collection Account, the Reserve Account or the Issuer's Account, or which have been deposited by the Servicer to the Collection Account, or any other account, or which shall thereafter be received with respect to the Acquired Advances, and (ii) assisting the Successor Servicer until all servicing activities have been transferred to such Successor Servicer, such assistance to include, without limitation, (x) assisting any accountants selected by the Successor Servicer to verify collection records and reports made prior to the Service Transfer and (y) assisting the Successor Servicer in making the computer systems obligations of the Servicer and any Co-Servicer as Servicer and Co-Servicer respectively under this Agreement. For the Successor avoidance of doubt, any Termination Notice given in accordance with this Clause 4.1 shall terminate the appointment of both the Servicer compatible and any Co-Servicer regardless of which entity was the subject of the Servicer Default. Notwithstanding the foregoing, a delay in or failure of performance referred to in Clause 4.1(a), (b) or (c) for a period of 60 Business Days, shall not constitute a Servicer Default if such delay or failure could not have been prevented by the extent necessary to effect exercise of reasonable diligence by the Service TransferServicer or Co-Servicer, as the case may be, and such delay or failure was caused by an act of God, acts of declared or undeclared war, public disorder, rebellion, riot or sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or meltdowns, floods, power cuts or similar causes. The preceding sentence shall not relieve the Servicer shallor Co-Servicer from using 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, at its expenseif applicable, within five Business Days the Co-Servicer shall provide any Enhancement Provider, the Transferor, any Additional Transferor and each Beneficiary with an Officer's Certificate giving prompt notice of such Service Transferfailure or delay by it, (A) assemble such documents, instruments and other records (including computer tapes and discs), which evidence the Acquired Advances and the other Pledged Assets, and which are necessary or desirable to collect the Acquired Advances and shall make the same available to the Successor Servicer or the Trustee or its designee at together with a place selected by the Successor Servicer or the Trustee and in such form as the Successor Servicer or the Trustee may reasonably request, and (B) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Acquired Advances in a manner acceptable to the Successor Servicer and the Trustee, and, promptly upon receipt, remit all such cash, checks and instruments to the Successor Servicer or the Trustee or its designee. At any time following a Termination Notice:
(1) The Servicer shall, at the Trustee's request and at the Servicer's expense, give notice description of the Trustee's security interest in the Acquired Advances to the related Obligors and direct that payments be made directly to the Trustee or its designee;
(2) If the Servicer fails to provide the notice to Obligors required in paragraph (1) above, the Trustee may direct the Obligors of Acquired Advances or any of them, that payment of all amounts payable under any such Acquired Advances be made directly to the Trustee or its designee;
(3) Each of the Issuer and Noteholder hereby authorizes the Trustee to take any and all steps in the Issuer's name and on behalf of the Issuer and the Noteholders necessary or desirable, in the determination of the Trustee, to collect all amounts due under any and all Acquired Advances, including, without limitation, endorsing the Issuer's name on checks and other instruments representing Collections in respect cause of such Acquired Advances failure or delay and enforcing such Acquired Advancesits efforts so to perform its obligations.
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Sources: Beneficiaries Servicing Agreement (Gracechurch Receivables Trustee LTD)