Events of Servicing Termination. If any one of the following events ("Events of Servicing Termination") shall occur and be continuing: (i) Any failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or (ii) Failure on the part of the Master Servicer duly to observe or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or (iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or (iv) The consent by the Master Servicer to the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to substantially all of its property; or the Master 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, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Trustee, the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit Enhancer, by notice then given in writing to the Master Servicer (and to the Trustee if given by the Credit Enhancer or the Holders of Investor Certificates) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency and the Credit Enhancer. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section 8.01; and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Termination.
Appears in 1 contract
Events of Servicing Termination. If (a) The Trustee (acting upon the request of the Owners of the majority of the Percentage Interests of the Offered Certificates then Outstanding as a whole and not on a Class by Class basis) or the Seller may immediately remove the related Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events and the expiration of the related cure period ("Events provided, that the occurrence of Servicing Termination") any such events with respect to one Servicer shall occur and be continuing:cause to remove only such Servicer):
(i) Any Such Servicer shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master Such Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of such Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of such Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to such Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by such Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination sixty (60) consecutive days;
(iv) Such Servicer shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) through above) and shall continue in default thereof for a period of forty-five (iv)45) days after the earlier of (x) notice by the Trustee of said failure or (y) actual knowledge of a responsible officer of such Servicer;
(v) The failure of such Servicer to satisfy the Servicer Termination Test; or
(vi) (a) In the case of Advanta, aboveAdvanta Mortgage Corp. USA consolidated with Advanta Mortgage Holding Corp. shall fail to maintain a net worth of at least $20 million; or (b) in the case of Ameriquest, either it shall fail to maintain a net worth of $30 million; or (c) in the case of Option One, it shall fail to maintain a net worth of at least $20 million. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the related Remittance Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of Compensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the relevant Servicer, the Credit Enhancer or Trustee shall so notify in writing an Authorized Officer of such Servicer and the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit Enhancer, by Seller as soon as is reasonably practical.
(b) Any party exercising any termination rights under Subsection (a) above shall give notice then given in writing to the Master relevant Servicer (and a copy to the Trustee if given by Trustee) of the Credit Enhancer or the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master such Servicer as servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Owners and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master such Servicer of such written notice, all authority and power of the Master such Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(or if the predecessor Master Servicer c) If any event described in subsection (a)(vi) above occurs and is continuing, during a 30 day period following receipt of notice, the Trustee, the initial Master Servicer) upon presentation of reasonable documentation affected Servicer and the Seller shall cooperate with each other to determine if the occurrence of such costs and expensesevent is likely to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. Notwithstanding If the foregoingSeller, in its reasonable discretion, concludes that the event is not likely to have a delay in or failure of performance under Section 8.01(i) for material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of ten Business Days or under Section 8.01(ii) for 90 days to cure such default. If the Seller, in its reasonable discretion, concludes that the event is likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 60 Business Days, shall 15 days to cure such default. If the event is not constitute an Event of Servicing Termination if such delay or failure could not be prevented cured by the exercise end of reasonable diligence by the Master Servicer applicable period, no further extension of the cure period is required, and such delay or failure was caused by an act of God or Servicer may be terminated as provided in this section.
(d) The Seller and 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 Master Servicer from using its Trustee agree to use their best efforts to perform its respective obligations in a timely manner in accordance with inform each other of any materially adverse information regarding each Servicer's servicing activities that comes to the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice attention of such failure or delay by it, together with a description of its efforts party from time to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationtime.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1997-2)
Events of Servicing Termination. (a) If any one of the following events ("Events Event of Servicing Termination") shall occur and be continuing:
(i) Any The Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five three Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Indenture Trustee or to from the Master Servicer and the Trustee by the Credit Enhancer Insurer or Holders of Investor Certificates Noteholders evidencing Percentage Interests aggregating not less than 25%; orprovided, however, that if the Servicer does not remit the Monthly Remittance Amount to the Note Account by the day prior to the Payment Date, without limiting the foregoing, the Servicer shall pay to the Indenture Trustee, for the account of the Indenture Trustee, interest at the Prime Rate thereon from such day prior to the Payment Date to but not including the date that such remittance is made;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, liquidator, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, conservator or custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of 75 consecutive days;
(iv) The Servicer shall fail to cure any breach of any of its obligationsrepresentations and warranties set forth in Section 3.2 or perform any of its covenants or other obligations hereunder (except those otherwise provided for pursuant to clauses (i) and (v) of this Section 5.1(a)), which failure materially and adversely affects the interests of the Noteholders or Insurer and which failure continues for a period of 30 days after the Servicer's discovery or receipt of notice thereof from the Indenture Trustee, the Insurer, or Noteholders evidencing Percentage Interests aggregating not less than 25%; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written consent of the Insurer; or
(v) The Servicer shall fail to make any required Servicing Advance which failure continues for 30 days or more after written notice from the Insurer if such failure has a material and adverse affect on Net Liquidation Proceeds, in the sole determination of the Insurer; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Trustee, the Credit Enhancer Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing Percentage Interests aggregating not less than 51% %, in each case with the written consent of the Credit EnhancerInsurer, or the Insurer, in all cases with and by notice then given in writing to the Master Servicer (and to the Indenture Trustee if given by the Credit Enhancer or the Holders of Investor Certificates) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency and the Credit EnhancerInsurer. On or Within 90 days after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the Indenture Trustee pursuant to and under this Section 8.01; 5.1 and, without limitation, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Indenture Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Indenture Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Note Account, or that have been deposited by the Master Servicer in the Collection Note Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. The Indenture Trustee shall be entitled to be reimbursed from the Servicer (or by the Trust pursuant to Section 5.9 or 8.6 of the Indenture if the Servicer is unable to fulfill its obligations hereunder) for all costs associated with the transfer of servicing from the predecessor servicer, including, without limitation, any costs or expenses associated with the complete transfer of all servicing data and the completion, correction or manipulation of such servicing data as may be required by the Indenture Trustee to correct any errors or insufficiencies in the servicing data or otherwise to enable the Indenture Trustee to service the Mortgage Loans properly and effectively. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 5.1 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Indenture Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, Nothing herein shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Indenture Trustee, the TransferorSeller, the Credit Enhancer Insurer and the Investor Certificateholders Noteholders with an Officers' Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Indenture Trustee and the Insurer in writing of any Events of Servicing Termination.
(b) In addition to the foregoing, the Insurer may remove the Servicer upon the occurrence of any of the following:
(i) the Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure continues unremedied for three Business Days following written notice to an Authorized Officer of the Servicer from the Indenture Trustee or from the Insurer or Noteholders evidencing Percentage Interests aggregating not less than 25%;
(ii) the Servicer shall fail to make any required Servicing Advance which failure continues for 30 days or more after written notice from the Insurer if such failure has a material and adverse affect on Net Liquidation Proceeds, in the sole determination of the Insurer; or
(iii) the failure of the Servicer to perform one or more of its material obligations under this Agreement, which failure continues for thirty days or more after written notice from the Insurer.
(c) No removal or resignation of the Servicer shall become effective until the Indenture Trustee or a successor servicer acceptable to the Insurer shall have assumed the Servicer's responsibilities and obligations in accordance with this Section.
(d) Upon removal or resignation of the Servicer, the Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Indenture Trustee all the books and records (including, without limitation, all Mortgage Files or portions thereof in the Servicer's possession and all records kept in electronic form) that the Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents then in the Servicer's possession.
(e) Any collections received by the Servicer after removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly and immediately to the Indenture Trustee or the successor Servicer.
(f) Upon removal or resignation of the Servicer, the Indenture Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Servicer as a result of soliciting such bids, shall serve as Servicer pursuant to this Section 5.1. The Indenture Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $5,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Insurer as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Indenture Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Section 4.8.
(g) In the event the Indenture Trustee solicits bids as provided above, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Section 4.8. Within thirty days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest satisfactory bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor.
(h) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to cooperate with the Indenture Trustee and any successor Servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Servicer, as applicable, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Indenture Trustee or such successor Servicer, as applicable, all amounts which then have been or should have been deposited in the Principal and Interest Account or the Note Account by the Servicer or which are thereafter received with respect to the Mortgage Loans. Neither the Indenture Trustee nor any other successor Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer.
(i) The Servicer which is being removed or is resigning shall give notice to the Mortgagors and to Moody's and S&P of the transfer of the servicing to the succe▇▇▇▇.
(j) The Indenture Trustee shall give notice to the Insurer, Moody's and S&P and to the Noteholders of the occurrence of a▇▇ ▇▇▇▇t specified in Section 5.1(a) of which the Indenture Trustee has actual knowledge.
(k) The Indenture Trustee or any other successor Servicer, upon assuming the duties of Servicer hereunder, shall thereupon make all Servicing Advances which the Servicer has theretofore failed to pay with respect to the Mortgage Loans.
Appears in 1 contract
Sources: Sale and Servicing Agreement (J P Morgan Acceptance Corp I)
Events of Servicing Termination. (a) If any one of the following events ("Events Event of Servicing Termination") shall occur and be continuing:
(i) Any The Master Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer to deposit in from the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates from Class A Noteholders evidencing Percentage Interests Interest aggregating not less than 25%; or.
(ii) Failure on the part of the The Master Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trusteereceiver, conservatorIndenture Trustee, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a Indenture Trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to cure any breach of any of its obligationsrepresentations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Class A Noteholders or Insurer for a period of sixty (60) days after the Master Servicer's discovery or receipt of notice thereof from the Indenture Trustee, the Insurer, or Class A Noteholders evidencing Percentage Interests aggregating not less than 25%; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Insurer that 53 62 it is diligently pursuing remedial action, then the cure period may be extended with the written consent of the Insurer. then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Indenture Trustee, the Credit Enhancer Insurer or the Holders of Investor Certificates Class A Noteholders evidencing Percentage Interests aggregating not less than 51% in each case with the consent of the Credit EnhancerInsurer, or the Insurer, by notice then given in writing to the Master Servicer (and to the Indenture Trustee if given by the Credit Enhancer or Insurer of the Holders of Investor CertificatesClass A Noteholders) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency and the Credit EnhancerInsurer. On or and after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the Indenture Trustee pursuant to and under this Section 8.01; 5.1 and, without limitation, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Indenture Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Indenture Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Note Account, or that have been deposited by the Master Servicer in the Collection Note Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 5.1 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Indenture Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i5.1(i) for a period of ten two Business Days or under Section 8.01(ii5.1(iv) for a period of 60 Business Daysdays, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Indenture Trustee, the TransferorSponsor, the Credit Enhancer Insurer and the Investor Certificateholders Noteholders with an Officers' Officer's Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Indenture Trustee and the Insurer in writing of any Events of Servicing Termination.
(b) In addition to the foregoing, the Insurer may remove the Master Servicer upon the occurrence of an "Event of Servicing Termination" under the Insurance Agreement.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it except by mutual written consent of the Sponsor, the Master Servicer, the Insurer and the Indenture Trustee or upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Indenture Trustee and the Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Indenture Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Indenture Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly and immediately to the Indenture Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Indenture Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Indenture Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $5,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Indenture Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 4.8 and 4.15; provided, however, that if the Indenture Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Indenture Trustee at such time that the Indenture Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Indenture Trustee shall be obligated to serve as
Appears in 1 contract
Sources: Sale and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1998-A)
Events of Servicing Termination. If (a) The Trustee or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall; provided, however, that the Certificate Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0%;
(vi) if on any Payment Date occurring in September of any year, commencing in September 1998, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 2.0% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesTrustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee and the Certificate Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Trustee and the Certificate Insurer conclude that the event is the result of reasonable diligence by the Master former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Trustee shall act as successor Servicer. If the Trustee and the Certificate Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Certificate Insurer. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify inform the Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1997-3)
Events of Servicing Termination. If (a) The Trustee (acting upon the request of the Owners of the majority of the Percentage Interests of the Offered Certificates then Outstanding as a whole and not on a Class by Class basis) or the Seller may immediately remove the related Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events and the expiration of the related cure period ("Events provided, that the occurrence of Servicing Termination") any such events with respect to one Servicer shall occur and be continuing:cause to remove only such Servicer):
(i) Any Such Servicer shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master Such Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of such Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of such Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to such Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or 111 insolvency law, and, if such proceeding is being contested by such Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination sixty (60) consecutive days;
(iv) Such Servicer shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) through above) and shall continue in default thereof for a period of forty-five (iv)45) days after the earlier of (x) notice by the Trustee of said failure or (y) actual knowledge of a responsible officer of such Servicer;
(v) The failure of such Servicer to satisfy the Servicer Termination Test; or
(vi) (a) In the case of Advanta, aboveAdvanta Mortgage Corp. USA consolidated with Advanta Mortgage Holding Corp. shall fail to maintain a net worth of at least $20 million; or (b) in the case of Ameriquest, either it shall fail to maintain a net worth of $30 million; or (c) in the case of Wendover, (1) Wendover shall fail to maintain a net worth of at least $7 million, (2) Wendover shall no longer be owned by Electronic Data Systems, Inc. and (3) if ARMC is acting in its capacity as Subservicer, ARMC shall fail to maintain a net worth of at least $20 million. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the related Remittance Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of Compensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the relevant Servicer, the Credit Enhancer or Trustee shall so notify in writing an Authorized Officer of such Servicer and the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit Enhancer, by Seller as soon as is reasonably practical.
(b) Any party exercising any termination rights under subsection (a) above shall give notice then given in writing to the Master relevant Servicer (and a copy to the Trustee if given by Trustee) of the Credit Enhancer or the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master such Servicer as servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Owners and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master such Servicer of such written notice, all authority and power of the Master such Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(or if the predecessor Master Servicer c) If any event described in subsection (a)(vi) above occurs and is continuing, during a 30 day period following receipt of notice, the Trustee, the initial Master Servicer) upon presentation of reasonable documentation affected Servicer and the Seller shall cooperate with each other to determine if the occurrence of such costs and expensesevent is likely to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. Notwithstanding If the foregoingSeller, in its reasonable discretion, concludes that the event is not likely to have a delay in or failure of performance under Section 8.01(i) for material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of ten Business Days or under Section 8.01(ii) for 90 days from the date of such 112 determination by Seller to cure such default. If the Seller, in its reasonable discretion, concludes that the event is likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 60 Business Days15 days from the date of such determination by Seller to cure such default. The date of determination by Seller referenced in the preceding two sentences of this Section 8.20(c) shall be deemed to be the date upon which a written notice is mailed to the affected Servicer, shall first class postage prepaid, at the address of the affected Servicer set forth in Section 11.20 hereof. If the event is not constitute an Event of Servicing Termination if such delay or failure could not be prevented cured by the exercise end of reasonable diligence by the Master Servicer applicable period, no further extension of the cure period is required, and such delay or failure was caused by an act of God or Servicer may be terminated as provided in this Section 8.20.
(d) The Seller and 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 Master Servicer from using its Trustee agree to use their best efforts to perform its respective obligations in a timely manner in accordance with inform each other of any materially adverse information regarding each Servicer's servicing activities that comes to the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice attention of such failure or delay by it, together with a description of its efforts party from time to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationtime.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1998-1)
Events of Servicing Termination. If (a) The Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) or the Trustee or the Seller (in each case with the consent of the Certificate Insurer, which consent may not be unreasonably withheld) may immediately remove the related Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events and the expiration of the related cure period ("Events provided, that the occurrence of Servicing Termination") any such events with respect to one Servicer shall occur and be continuing:cause to remove only such Servicer):
(i) Any Such Servicer shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master Such Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of such Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of such Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to such Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by such Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination sixty (60) consecutive days;
(iv) Such Servicer shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) through above) and shall continue in default thereof for a period of forty-five (iv)45) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of a responsible officer of such Servicer; provided, abovehowever, either that if such Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer;
(v) The failure of such Servicer to satisfy the Servicer Termination Test; and
(vi) In the case of Option One, Fleet National Bank ceases to own at least 51% of the issued and outstanding common stock of Option One. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the related Prepayment Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of Compensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the relevant Servicer, the Credit Enhancer or Trustee shall so notify in writing an Authorized Officer of such Servicer, the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with Seller and the consent of the Credit Enhancer, by Certificate Insurer as soon as is reasonably practical.
(b) Any party exercising any termination rights under Subsection (a) above shall give notice then given in writing to the Master relevant Servicer (and a copy to the Trustee if given by Trustee) of the Credit Enhancer or the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master such Servicer as servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Certificate Insurer, the Owners and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master such Servicer of such written noticenotice (including any required consent of the Certificate Insurer), all authority and power of the Master such Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(c) If any event described in subsection (a)(v) or if (vi) above occurs and is continuing, during the predecessor Master Servicer is 30 day period following receipt of notice, the Trustee, the initial Master Servicer) upon presentation of reasonable documentation Owners requesting termination, the Seller and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such costs and expensesevent is more likely than not the result of the acts or omissions of such Servicer or more likely than not the result of events beyond the control of such Servicer. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide If the Trustee, the TransferorSeller, the Credit Enhancer Owners requesting termination and the Investor Certificateholders Certificate Insurer conclude that the event is the result of the latter, such Servicer may not be terminated, unless and until some other event set forth in subsection (a) has occurred and is continuing. If the Trustee, the Seller, the Owners requesting termination and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate such Servicer in accordance with an Officers' this Section, and the Trustee shall act as successor Servicer. If the Trustee, the Seller and the Certificate giving prompt notice Insurer cannot agree, and the basis for such disagreement is not arbitrary or unreasonable, as to the cause of the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate any Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the exclusive obligation of the Certificate Insurer and the Trustee shall be indemnified by the Certificate Insurer for any liabilities, costs or expenses resulting from such decision. The Certificate Insurer and the Seller agree to use their best efforts to inform the Trustee each Servicer and each other of any materially adverse information regarding such Servicer's servicing activities that comes to the attention of such failure party from time to time.
(d) If the event described in (a)(vii) above occurs, then the Certificate Insurer, or delay in the event of a Certificate Insurer Default, the Trustee, the Seller and the Owners requesting termination, each shall have the option, by itnotice in writing, together with a description to Option One and all other parties who have such termination right, of terminating all of the rights and obligations of Option One in its efforts capacity as Servicer under this Agreement, and in and to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing TerminationMortgage Loans and the proceeds thereof.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Armesco Residential Sec Corp Mort Loan Tr 1996-5)
Events of Servicing Termination. If (a) The Trustee (acting upon the request of the Owners of the majority of the Percentage Interests of the Offered Certificates then Outstanding as a whole and not on a Class by Class basis) or the Seller may immediately remove the related Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events and the expiration of the related cure period ("Events provided, that the occurrence of Servicing Termination") any such events with respect to one Servicer shall occur and be continuing:cause to remove only such Servicer): 108
(i) Any Such Servicer shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master Such Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of such Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of such Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to such Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by such Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination sixty (60) consecutive days;
(iv) Such Servicer shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) through above) and shall continue in default thereof for a period of forty-five (iv), above, either 45) days after the earlier of (x) notice by the Trustee of said failure or (y) actual knowledge of a responsible officer of such Servicer;
(v) The failure of such Servicer to satisfy the Servicer Termination Test. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the Collection Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of Compensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the relevant Servicer, the Credit Enhancer or Trustee shall so notify in writing an Authorized Officer of such Servicer, the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with Master Servicer and the consent of the Credit Enhancer, by Seller as soon as is reasonably practical.
(b) Any party exercising any termination rights under subsection (a) above shall give notice then given in writing to the Master relevant Servicer (and a copy to the Trustee if given by and the Credit Enhancer or Master Servicer) of the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master such Servicer as servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Owners and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master such Servicer of such written notice, all authority and power of the Master such Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor 109 Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(or if the predecessor Master Servicer c) If any event described in subsection (a)(vi) above occurs and is continuing, during a 30 day period following receipt of notice, the Trustee, the initial Master Servicer) upon presentation of reasonable documentation , the affected Servicer and the Seller shall cooperate with each other to determine if the occurrence of such costs and expensesevent is likely to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. Notwithstanding If the foregoingSeller, in its reasonable discretion, concludes that the event is not likely to have a delay in or failure of performance under Section 8.01(i) for material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of ten Business Days or under Section 8.01(ii) for 90 days from the date of such determination by Seller to cure such default. If the Seller, in its reasonable discretion, concludes that the event is likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 60 Business Days15 days from the date of such determination by Seller to cure such default. The date of determination by Seller referenced in the preceding two sentences of this Section 8.20(c) shall be deemed to be the date upon which a written notice is mailed to the affected Servicer, shall first class postage prepaid, at the address of the affected Servicer set forth in Section 11.20 hereof. If the event is not constitute an Event of Servicing Termination if such delay or failure could not be prevented cured by the exercise end of reasonable diligence by the applicable period, no further extension of the cure period is required, and such Servicer may be terminated as provided in this Section 8.20.
(d) The Seller, the Master 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 Master Servicer from using its Trustee agree to use their best efforts to perform its respective obligations in a timely manner in accordance with inform each other of any materially adverse information regarding each Servicer's servicing activities that comes to the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice attention of such failure or delay by it, together with a description of its efforts party from time to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationtime.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp)
Events of Servicing Termination. (a) If any one of the following events ("Events Event of Servicing Termination") shall occur and be continuing:
(i) Any The Master Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer to deposit in from the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates from Class A Noteholders evidencing Percentage Interests Interest aggregating not less than 25%; or.
(ii) Failure on the part of the The Master Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trusteereceiver, conservatorIndenture Trustee, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its creditorseffecting any of the foregoing;
(iii) If without the application, approval or voluntarily suspend payment consent of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a Indenture Trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination specified in seventy-five (i75) through consecutive days; or
(iv), above, either ) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Class A Noteholders or Insurer for a period of sixty (60) days after the Master Servicer's discovery or receipt of notice thereof from the Indenture Trustee, the Credit Enhancer Insurer, or the Holders of Investor Certificates Class A Noteholders evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit Enhancer25%; provided, by notice then given in writing to however, that if the Master Servicer (and can demonstrate to the Trustee if given by the Credit Enhancer or the Holders of Investor Certificates) may terminate all reasonable satisfaction of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency and the Credit Enhancer. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section 8.01; and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Termination.Insurer that
Appears in 1 contract
Sources: Sale and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Events of Servicing Termination. If (a) The Trustee or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall; provided, however, that the Certificate Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0%;
(vi) if on any Payment Date occurring in September of any year, commencing in September 1997, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 2.0% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesTrustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee and the Certificate Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Trustee and the Certificate Insurer conclude that the event is the result of reasonable diligence by the Master former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Trustee shall act as successor Servicer. If the Trustee and the Certificate Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Certificate Insurer. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify inform the Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1996-3)
Events of Servicing Termination. If (a) The Trustee (acting upon the request of the Owners of at least 50% of the Percentage Interests of the Offered Certificates then Outstanding with respect to either of the Mortgage Loan Groups) may immediately remove the Servicer or the Special Servicer (or both the Servicer and the Special Servicer in the case of clause (v)) as Servicer or Special Servicer of such Mortgage Loan Group upon the occurrence of any one of the following events ("Events and the expiration of Servicing Termination") shall occur and be continuingthe related cure period:
(i) Any The Servicer or the Special Servicer, as applicable, shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by or the Special Servicer, as applicable, from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failureSpecial Servicer, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunderas applicable, shall have been given to the Master Servicer by the Trustee (I) apply for or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer or the Special Servicer, as applicable, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer or the Special Servicer, as applicable, an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or the Special Servicer, as applicable, or of all or any substantial part of its creditorsassets, or voluntarily suspend other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer or the Special Servicer, as applicable, in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of sixty (60) consecutive days;
(iv) The Servicer or the Special Servicer, as applicable, shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) above) and shall continue in default thereof for a period of thirty (30) days after the earlier of (x) notice by the Trustee of said failure or (y) actual knowledge of a responsible officer of the Servicer and the Special Servicer, as applicable; or
(v) The failure of the Servicer and the Special Servicer to satisfy the Servicer Termination Test; or
(vi) The Servicer shall fail to maintain a net worth of $20 million. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the Collection Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of its obligations; thenCompensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the Servicer or the Special Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer or the Special Servicer and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect the Guarantor and the Seller as soon as is reasonably practical.
(b) Any party exercising any termination rights under subsection (a) above shall give notice in writing to an Event of Servicing Termination specified in the Servicer or the Special Servicer (i) through (iv), above, either and a copy to the Trustee, the Credit Enhancer or Guarantor and the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent Master Servicer) of the Credit Enhancer, by notice then given in writing to the Master Servicer (and to the Trustee if given by the Credit Enhancer or the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master Servicer as servicer or the Special Servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Owners, the Guarantor and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer or the Special Servicer of such written notice, all authority and power of the Master Servicer or the Special Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer or successor Special Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer or predecessor Special Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to or predecessor Special Servicer shall cooperate with the successor Servicer or successor Special Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, or predecessor Special Servicer under this Agreement including the transfer to the successor Servicer or successor Special Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to or predecessor Special Servicer for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(or if the predecessor Master Servicer is the Trusteec) The Seller, the initial Master Servicer) upon presentation of reasonable documentation of such costs , the Guarantor and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its Trustee agree to use their best efforts to perform its respective obligations in a timely manner in accordance with inform each other of any materially adverse information regarding the terms of this Agreement and Servicer's or the Master Servicer shall provide Special Servicer's servicing activities that comes to the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice attention of such failure or delay by it, together with a description of its efforts party from time to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationtime.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Secs Corp Mort Loan Trust 1998-3)
Events of Servicing Termination. If any one of the following events ("Events of Servicing Termination") shall occur and be continuing:
(i) Any failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by [the Credit Enhancer or or] Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(ii) Failure on the part of the Master Servicer duly to observe or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders [or the Credit Enhancer Enhancer] and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to substantially all of its property; or the Master 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, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Trustee[, the Credit Enhancer Enhancer] or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of [the Credit Enhancer], by notice then given in writing to the Master Servicer (and to the Trustee if given by [the Credit Enhancer Enhancer] or the Holders of Investor Certificates) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency [and the Credit Enhancer]. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section 8.01; and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor[, the Credit Enhancer Enhancer] and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Termination.
Appears in 1 contract
Events of Servicing Termination. If (a) The Trustee or the Oversight Agent (each with the consent of the Certificate Insurer) or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee Trustee, the Oversight Agent or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee, the Oversight Agent or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such casewriting by the Certificate Insurer;
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0% for either Mortgage Loan Group, so long as an Event of Servicing Termination except that following a transition to a successor servicer, this Section 8.20(b)(v) shall not have been remedied by apply to such successor servicer for a period of 90 days after the Master Servicerappointment of such successor servicer as Servicer hereunder;
(vi) if on any Payment Date occurring in June of any year, commencing in June 2000, the aggregate Pool Cumulative Realized Losses for a Mortgage Loan Group over the prior twelve month period exceed 2.0% of the average Pool Principal Balance of such Mortgage Loan Group as of the close of business on the last day of each of the twelve preceding Remittance Periods;
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Notwithstanding the foregoing, the events of servicing termination set forth in clauses (viii) - (xii) below shall apply only to First Alliance Mortgage Company (and any affiliate thereof), during its term as Servicer, and shall not apply to any successor servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the majority ▇▇▇▇▇;
(ix) the Servicer shall fail to maintain committed "warehouse facility" line(s) of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
(x) a default shall have occurred or been declared under any short-term or long-term indebtedness of the Servicer;
(xi) the Servicer shall fail to maintain at least the following financial requirements, based upon its most recent financial statements:
a) shareholders' equity of at least $70 million plus 50% of the Servicer's net income since December 1, 1998; and
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1;
(xii) a state or federal court shall enter a substantial and material judgment (a judgment in an amount which if it were subtracted from the existing shareholder's equity as set forth in the Servicer's most recent financial statements would be an event described in clause (xi) above against the Servicer, in any action in which the Servicer, acting in any capacity, is a party defendant, ruling that the Servicer violated any consumer protection act or deceptive trade practices act of any state in the origination or collection of consumer loans, including mortgage loans. In such event, the Servicer shall immediately notify in writing the Trustee and the Certificate Insurer of the entry of any such judgment and shall provide the calculation; or
(xiii) The Servicer shall not at all times have in place, for a stated term extending at least thirty (30) days into the future, a committed warehouse financing facility in at least the same amount and for substantially identical terms as the current $150 million facility under the Master Repurchase Agreement with Lehman Commercial Paper, Inc. Upon the Oversight Agent or th▇ ▇▇▇▇tee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Oversight Agent or the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by and the Credit Enhancer or the Holders of Investor CertificatesOversight Agent) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.5 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under Oversight Agent (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer or the Oversight Agent in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the Trustee successor Servicer or to the Oversight Agent for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with the transfer of servicing, including, without limitation, transferring the Mortgage Files and the other necessary data to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 or Section 8.21 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding expenses (but only to the foregoing, a delay in or failure of performance extent the Oversight Agent has not been previously reimbursed therefor under Section 8.01(i7.5(d) hereof or otherwise).
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee, the Oversight Agent and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. If the Trustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the latter, the Servicer may not be terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the Trustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Oversight Agent shall act as successor Servicer unless a successor Servicer is otherwise appointed hereunder. If the Trustee, the Oversight Agent and the Certificate Insurer cannot agree, and the basis for a period such disagreement is not arbitrary or unreasonable, as to the cause of ten Business Days or under the event, the decision of the Certificate Insurer shall control. For purposes of this Section 8.01(ii) for a period 8.20, neither the Trustee nor the Oversight Agent shall be deemed to have knowledge of 60 Business Days, shall not constitute an Event of Servicing Termination if Default unless a Responsible Officer of (i) the Trustee assigned to and working in the Corporate Trust Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such delay or failure could not be prevented an Event of Default is received by the exercise of reasonable diligence by Trustee or the Master Servicer Oversight Agent, as applicable, and such delay notice references the Certificates, the Trust 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 causesthis Agreement. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with inform the terms of this Agreement Trustee and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing Oversight Agent of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-4)
Events of Servicing Termination. If (a) The Trustee or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall; provided, however, that the Certificate Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds _______%;
(vi) if on any Payment Date occurring in December of any year, commencing in ________________, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed _______% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Startup Day exceed _______% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Startup Day exceed _______% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesTrustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) abovoccurs and is continuing, during the 30 day period following receipt of notice, the Trustee and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee and the Certificate Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Trustee and the Certificate Insurer conclude that the event is the result of reasonable diligence by the Master former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Trustee shall act as successor Servicer. If the Trustee and the Certificate Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Certificate Insurer. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify inform the Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Co /De/)
Events of Servicing Termination. If (a) The Trustee or the Oversight Agent (each with the consent of the Certificate Insurer) or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee Trustee, the Oversight Agent or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall 203968.5d continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee, the Oversight Agent or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2A which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0% for either Mortgage Loan Group;
(vi) if on any Payment Date occurring in June of any year, commencing in June 2000, the aggregate Pool Cumulative Realized Losses for a Mortgage Loan Group over the prior twelve month period exceed 2.0% of the average Pool Principal Balance of such Mortgage Loan Group as of the close of business on the last day of each of the twelve preceding Remittance Periods;
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can 203968.5d demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in ▇▇▇▇▇ ▇▇▇▇▇▇▇ no longer being the majority owner;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain committed "warehouse facility" line(s) of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
(x) a default shall have occurred or been declared under any short-term or long-term indebtedness of the Servicer; or
(xi) the Servicer shall fail to maintain at least the following financial requirements, based upon its most recent financial statements:
a) shareholders' equity of at least $70 million plus 50% of the Servicer's net income since December 1, 1998; and
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1. Upon the Oversight Agent or the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Oversight Agent or the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by and the Credit Enhancer or the Holders of Investor CertificatesOversight Agent) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under Oversight Agent (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer or the Oversight Agent in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the Trustee successor Servicer or to the Oversight Agent for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with the transfer of servicing, including, without limitation, transferring the Mortgage Files and the other necessary data to the successor Master 203968.5d Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 or Section 8.21 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding expenses (but only to the foregoing, a delay in or failure of performance extent the Oversight Agent has not been previously reimbursed therefor under Section 8.01(i7.5(d) hereof or otherwise).
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee, the Oversight Agent and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. If the Trustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the latter, the Servicer may not be terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the Trustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Oversight Agent shall act as successor Servicer unless a successor Servicer is otherwise appointed hereunder. If the Trustee, the Oversight Agent and the Certificate Insurer cannot agree, and the basis for a period such disagreement is not arbitrary or unreasonable, as to the cause of ten Business Days or under the event, the decision of the Certificate Insurer shall control. For purposes of this Section 8.01(ii) for a period 8.20, neither the Trustee nor the Oversight Agent shall be deemed to have knowledge of 60 Business Days, shall not constitute an Event of Servicing Termination if Default unless a Responsible Officer of (i) the Trustee assigned to and working in the Corporate Trust Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such delay or failure could not be prevented an Event of Default is received by the exercise of reasonable diligence by Trustee or the Master Servicer Oversight Agent, as applicable, and such delay notice references the Certificates, the Trust 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 causesthis Agreement. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with inform the terms of this Agreement Trustee and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing Oversight Agent of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-2)
Events of Servicing Termination. (a) If any one of the following events ("Events Event of Servicing Termination") shall occur and be continuing:
(i) Any The Master Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by continues unremedied for three (3) Business Days following -39- 44 written notice to an Authorized Officer of the Master Servicer to deposit in from the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Indenture Trustee or to from the Master Servicer and the Trustee by the Credit Enhancer Insurer or Holders of Investor Certificates evidencing Noteholders holding Percentage Interests aggregating not less than 25%; or.
(ii) Failure on the part of the The Master Servicer duly to observe shall (i) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing.
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to cure any breach of any of its obligationsrepresentations and warranties set forth in Section 3.2 or fail to perform any covenants hereunder, which failure materially and adversely affects the interests of the Noteholders or the Insurer for a period of 30 days after the Master Servicer's discovery or receipt of notice thereof from the Indenture Trustee, the Insurer or Noteholders holding Notes evidencing not less than 25% of the Note Balance; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written consent of the Insurer.
(v) The Master Servicer shall fail to make any required Servicing Advance which failure continues for thirty (30) days or more after written notice from the Insurer if such failure has a material and adverse affect on Net Liquidation Proceeds, in the sole determination of the Insurer. then, and in each and every such case, so long as an the Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Trustee, the Credit Enhancer Indenture Trustee or the Holders of Investor Certificates Noteholders holding Notes evidencing Percentage Interests aggregating not less than 51% of the Note Balance in each case with the written consent of the Credit EnhancerInsurer, or the Insurer, by notice then given in writing to the Master Servicer (and to the Indenture Trustee if given by the Credit Enhancer Insurer or the Holders of Investor CertificatesNoteholders) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the -40- 45 Master Servicer shall also be given to each Rating Agency and the Credit EnhancerInsurer. On or and after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates Notes or the Mortgage Loans or otherwise, shall pass to and be vested in the Indenture Trustee pursuant to and under this Section 8.01; 5.1 and, without limitation, the Indenture Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Indenture Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Indenture Trustee for the administration by it of administration, all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it Servicer. The Indenture Trustee will promptly deposit such cash in the Collection Note Account. Thereafter, or that have been deposited by the Master Servicer in the Collection Account or thereafter any cash received by the Master Servicer with respect to the Mortgage LoansLoans shall be immediately transferred to the Note Account. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 5.1 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Indenture Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, Nothing herein shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Indenture Trustee, the TransferorSponsor, the Credit Enhancer Insurer and the Investor Certificateholders Noteholders with an Officers' Officer's Certificate giving prompt notice of such any failure or delay by itit to perform its obligations, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Indenture Trustee and the Insurer in writing of any Events of Servicing Termination.
(b) In addition to the foregoing, the Insurer may remove the Master Servicer upon the occurrence of an "Insurance Agreement Event of Servicing Termination" under the Insurance Agreement.
(c) No removal or resignation of the Master Servicer shall become effective until the Indenture Trustee or a successor servicer acceptable to the Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(d) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Indenture Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(e) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Indenture Trustee and remitted directly and immediately to the Indenture Trustee or the successor Master Servicer.
(f) Upon removal or resignation of the Master Servicer, the Indenture Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Indenture Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $5,000,000, as determined in accordance with generally accepted accounting principles, acceptable to the Insurer, as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Indenture Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 4.9 and 4.15 (but excluding prepayment fees and termination fees); provided, however, that if the Indenture Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Indenture Trustee at such time that the Indenture Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Indenture Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(g) In the event the Indenture Trustee solicits bids as provided above, the Indenture Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 4.9 and 4.15 (but excluding prepayment fees and termination fees). Within thirty (30) days after any such public announcement, the Indenture Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest satisfactory bid. The Indenture Trustee shall deduct from any sum received by the Indenture Trustee from the successor to the Master Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder. After such deductions, the remainder of such sum shall be paid by the Indenture Trustee to the Master Servicer at the time of such sale, transfer and assignment to the Master Servicer's successor.
(h) The Indenture Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Master Servicer agrees to cooperate with the Indenture Trustee and any successor Master Servicer in effecting the termination of the Master Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Indenture Trustee or such successor Master Servicer, as applicable, all documents and records reasonably requested by it to enable it to assume the Master Servicer's functions hereunder and shall promptly also transfer to -42- 47 the Indenture Trustee or such successor Master Servicer, as applicable, all amounts which then have been or should have been deposited in the Principal and Interest Account by the Master Servicer or which are thereafter received with respect to the Mortgage Loans. Neither the Indenture Trustee nor any other successor Master Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer.
(i) The Master Servicer which is being removed or is resigning shall give notice to the Mortgagors and to Mood▇'▇ ▇▇▇ S&P of the transfer of the servicing to the successor.
(j) The Indenture Trustee shall give notice to the Insurer, Mood▇'▇ ▇▇▇ S&P and to the Noteholders of the occurrence of any event specified in Section 5.1(a) of which the Indenture Trustee has actual knowledge.
(k) The Indenture Trustee or any other successor Master Servicer, upon assuming the duties of Master Servicer hereunder, shall immediately make all Servicing Advances which the Master Servicer has theretofore failed to pay with respect to the Mortgage Loans; provided, however, that if the Indenture Trustee is acting as successor Master Servicer, the Indenture Trustee shall only be required to make Servicing Advances if, in the Indenture Trustee's reasonable good faith judgment, such Servicing Advances will ultimately be recoverable from the related Mortgage Loans.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 2000 A)
Events of Servicing Termination. If (a) The Trustee or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall; provided, however, that the Certificate Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0%;
(vi) if on any Payment Date occurring in June of any year, commencing in June 1998, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 2.0% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(vii) (a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesTrustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee and the Certificate Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Trustee and the Certificate Insurer conclude that the event is the result of reasonable diligence by the Master former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Trustee shall act as successor Servicer. If the Trustee and the Certificate Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Certificate Insurer. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify inform the Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1997 2)
Events of Servicing Termination. If (a) The Trustee or the Oversight Agent (each with the consent of the Certificate Insurer) or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee Trustee, the Oversight Agent or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee, the Oversight Agent or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2A which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0% for either Mortgage Loan Group;
(vi) if on any Payment Date occurring in March of any year, commencing in March 2000, the aggregate Pool Cumulative Realized Losses for a Mortgage Loan Group over the prior twelve month period exceed 2.0% of the average Pool Principal Balance of such Mortgage Loan Group as of the close of business on the last day of each of the twelve preceding Remittance Periods;
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in ▇▇▇▇▇ ▇▇▇▇▇▇▇ no longer being the majority owner;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain committed "warehouse facility" line(s) of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
(x) a default shall have occurred or been declared under any short-term or long-term indebtedness of the Servicer; or
(xi) the Servicer shall fail to maintain at least the following financial requirements, based upon its most recent financial statements:
a) shareholders' equity of at least $70 million plus 50% of the Servicer's net income since December 1, 1998; and
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1. Upon the Oversight Agent or the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Oversight Agent or the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by and the Credit Enhancer or the Holders of Investor CertificatesOversight Agent) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under Oversight Agent (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer or 77 the Oversight Agent in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the Trustee successor Servicer or to the Oversight Agent for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files and the other necessary data to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 or Section 8.21 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee, the Oversight Agent and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the latter, the Servicer may not be terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the Trustee, the Oversight Agent and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Oversight Agent shall act as successor Servicer unless a delay in successor Servicer is otherwise appointed hereunder. If the Trustee, the Oversight Agent and the Certificate Insurer cannot agree, and the basis for such disagreement is not arbitrary or failure unreasonable, as to the cause of performance under the event, the decision of the Certificate Insurer shall control. For purposes of this Section 8.01(i) for a period 8.20, neither the Trustee nor the Oversight Agent shall be deemed to have knowledge of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if Default unless a Responsible Officer of (i) the Trustee assigned to and working in the Corporate Trust Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such delay or failure could not be prevented an Event of Default is received by the exercise of reasonable diligence by Trustee or the Master Servicer Oversight Agent, as applicable, and such delay notice references the Certificates, the Trust 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 causesthis Agreement. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with inform the terms of this Agreement Trustee and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing Oversight Agent of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-1)
Events of Servicing Termination. If (a) The Trustee or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (i) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall; provided, however, that the Certificate Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0%;
(vi) if on any Payment Date occurring in December of any year, commencing in December 1998, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 2.0% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesTrustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Trustee and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingTrustee and the Certificate Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Trustee and the Certificate Insurer conclude that the event is the result of reasonable diligence by the Master former, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Trustee shall act as successor Servicer. If the Trustee and the Certificate Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, the Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Certificate Insurer. The preceding sentence shall not relieve the Master Servicer from using Certificate Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify inform the Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1997-4)
Events of Servicing Termination. If (a) The Indenture Trustee (with the consent of the Note Insurer) or the Note Insurer (or the Owners with the consent of the Note Insurer) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five one Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which Day following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Indenture Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trusteereceiver, conservatorIndenture Trustee, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a Indenture Trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to the Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination specified seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out in (i) through above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Indenture Trustee or the Note Insurer of said failure or (y) actual knowledge of an officer of the Servicer; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Note Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 2.2 which materially and adversely affects the interests of the Owners or Note Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Note Insurer.
(b) The Note Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) either an Adjustable Rate Total Available Funds Shortfall or a Fixed Rate Total Available Funds Shortfall;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Note Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in writing by the Note Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate for either Mortgage Loan Pool exceeds 7.0% for either Mortgage Loan Pool;
(vi) the Annual Loss Percentage (Rolling Six Months) for the prior six Remittance Periods exceeds 0.60% with respect to the Fixed Rate Pool or 0.80% with respect to the Adjustable Rate Pool; or
(vii) the failure of the Servicer to satisfy either the Adjustable Rate Cumulative Loss Test or the Fixed Rate Cumulative Loss Test;
(viii) the existence and continuation of any "event of default" as defined in the Insurance Agreement. Upon the Indenture Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Indenture Trustee shall so notify in writing an Authorized Officer of the Servicer and the Note Insurer as soon as is reasonably practical.
(c) In the case of clauses (i), above(ii), either (iii) or (iv) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates Notes evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Note Principal Balance of a Series of Notes (with the consent of the Credit Enhancer, Note Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesIndenture Trustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 2.4 shall also be not terminate. The Indenture Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or and after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates Notes or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Indenture Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Indenture Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Indenture Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Indenture Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 4.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. .
(d) Notwithstanding the foregoing, a delay in the event that one or failure more of performance under the events listed in Section 8.01(i4.20(b)(i), (v), (vi) for a period of ten Business Days or under Section 8.01(ii(vii) for a period of 60 Business Daysoccurs, the Note Insurer and the Servicer agree that the Note Insurer shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance comply with the terms provisions of this Agreement and that certain letter dated the Master Closing Date from the Note Insurer to the Seller prior to exercising its right to terminate the Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationas provided herein.
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-2)
Events of Servicing Termination. If (a) The Indenture Trustee or the Note Insurer (or the Owners with the consent of the Note Insurer) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any The Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Indenture Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trusteereceiver, conservatorIndenture Trustee, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a Indenture Trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Indenture Trustee or the Note Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Note Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 2.2 which materially and adversely affects the interests of the Owners or Note Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Note Insurer.
(b) The Note Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Total Available Funds Shortfall; provided, however, that the Note Insurer shall have no right to remove the Servicer under this clause (i) if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that such event was due to circumstances beyond the control of the Servicer;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Note Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerNote Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds ___%;
(vi) if on any Payment Date occurring in _________ of any year, commencing in _________ 199_, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed ___% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(vii) (a) if on any of the first 60 Payment Dates from the Closing Date the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods since the Closing Date exceed ___% of the Pool Principal Balance as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for all prior Remittance Periods from the Closing Date exceed ___% of the Pool Principal Balance as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Note Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer. Upon the Indenture Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Indenture Trustee shall so notify in writing an Authorized Officer of the Servicer and the Note Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates Notes evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Note Principal Balance (with the consent of the Credit Enhancer, Note Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by the Credit Enhancer or the Holders of Investor CertificatesIndenture Trustee) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 2.4 shall also be not terminate. The Indenture Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates Notes or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Indenture Trustee pursuant to and under (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Indenture Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Indenture Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Indenture Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 4.20 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses.
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the 30 day period following receipt of notice, the Indenture Trustee and the Note Insurer shall cooperate with each other to determine if the occurrence of such event is more likely than not the result of the acts or omissions of the Servicer or more likely than not the result of events beyond the control of the Servicer. Notwithstanding If the foregoingIndenture Trustee and the Note Insurer conclude that the event is the result of the latter, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could the Servicer may not be prevented by terminated, unless and until some other event set forth in subsection (a) or (b) has occurred and is continuing. If the exercise Indenture Trustee and the Note Insurer conclude that the event is the result of reasonable diligence by the Master former, the Note Insurer may terminate the Servicer in accordance with this Section, and the Indenture Trustee shall act as successor Servicer. If the Indenture Trustee and the Note Insurer cannot agree, and the basis for such delay disagreement is not arbitrary or failure was caused by an act unreasonable, as to the cause of God the event, the decision of the Note Insurer shall control; provided, however, that if the Note Insurer decides to terminate the Servicer, the Indenture Trustee shall be relieved of its obligation to assume the servicing or to appoint a successor, which shall be the public enemy, acts exclusive obligation of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causesthe Note Insurer. The preceding sentence shall not relieve the Master Servicer from using Note Insurer agrees to use its best efforts to perform its respective obligations in a timely manner in accordance with inform the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Indenture Trustee in writing of any Events materially adverse information regarding the Servicer's servicing activities that comes to the attention of Servicing Terminationthe Note Insurer from time to time.
Appears in 1 contract
Sources: Sale and Servicing Agreement (First Alliance Mortgage Co /De/)
Events of Servicing Termination. If any one of the following events (each, an "Events Event of Servicing Termination") shall occur and be continuing:
(ia) Any failure by the Master Servicer to deposit in forward to the Lender Collection Account, the Collection Account or the Lockbox, as applicable, any payment or partial payment or deposit required identified with respect to be made under any Receivable received by the terms Servicer and the continuance of this Agreement which continues unremedied such failure for a period of five one Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) Day after the date upon which written notice of such failure shall have been given to the Master Servicer payment or deposit is so identified by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%Servicer; or
(iib) Failure on the part of the Master Servicer duly to observe or perform in any material respect any other covenants term, covenant or agreements of the Master Servicer set forth in the Certificates or agreement in this Agreement, including the Servicer Duties, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days 10 Business Days after discovery by the Servicer or the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee Issuer, the Initial Lender or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%Trustee; or
(iiic) Any proceeding shall be instituted against the Servicer (or, if the Servicer is actively contesting the merits thereof, such proceeding is not dismissed within 60 days) seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or any of its Debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or
(d) The commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry against the Master Servicer of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by a court or agency or supervisory authority having jurisdiction in the premises for the appointment it of a trustee, conservator, receiver petition or liquidator in answer or consent seeking reorganization or relief under any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities applicable federal or similar proceedingsstate law, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by it to the Master Servicer filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities sequestrator or similar proceedings official of or relating to the Master Servicer or of or relating to substantially all any substantial part of its property; , or the Master Servicer shall admit making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts Debts generally as they become due, file a petition to take advantage or the taking of corporate action by the Servicer in furtherance of any applicable insolvency such action; or
(e) The Servicer shall fail to deliver a report at the time, in the form and containing the information expressly required by this Agreement, which failure continues for a period of 5 Business Days; or
(f) There is a breach of any of the representations and warranties of the Servicer set forth in Section 2.03 and such breach shall not have been cured in all material respects within 10 Business Days or reorganization statute, make an assignment for such longer period as may be agreed to by the benefit Servicer and the Initial Lender after receipt of its creditors, written notice thereof by the Servicer (if notice is given by the Initial Lender or voluntarily suspend payment the Issuer) or upon discovery by the Servicer;
(g) A Triggering Event shall have occurred; or
(h) An Event of its obligationsDefault shall have occurred and be continuing under the Indenture; then, and in each and every any such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), aboveevent, either the Trustee, the Credit Enhancer Issuer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit EnhancerInitial Lender may, by notice then given in writing delivery to the Master Servicer (and to the Initial Lender, the Trustee if given by the Credit Enhancer or the Holders Issuer, as applicable) of Investor Certificates) may a written notice specifying the occurrence of any of the foregoing events, terminate all of the rights and obligations responsibilities of the Master Servicer as servicer under this Agreement. Any such hereunder, without demand, protest or further notice to the Master Servicer shall also be given to each Rating Agency and the Credit Enhancer. On or after the receipt of any kind, all of which are hereby waived by the Master Servicer of (such written notice, all authority termination and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section 8.01; and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to Section 2.10 hereby called a "Service Transfer"); provided, that in the event any of the events described in subsections (c) or (d) of this Section 8.01 2.12 shall be paid have occurred, termination of the duties and responsibilities of the Servicer shall automatically occur, without, demand, protest, or further notice of any kind, all of which are expressly waived by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Termination.
Appears in 1 contract
Events of Servicing Termination. (a) If any one of the following events ("Events Event of Servicing Termination") shall occur and be continuing:
(i) Any The Master Servicer shall fail to deliver to the Indenture Trustee any proceeds or required payment, which failure by continues unremedied for three Business Days following written notice to an Authorized Officer of the Master Servicer to deposit in from the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Indenture Trustee or to from the Master Servicer and the Trustee by the Credit Enhancer Insurer or Holders of Investor Certificates Noteholders evidencing Percentage Interests aggregating not less than 25%; or.
(ii) Failure on the part of the The Master Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a trusteereceiver, conservatorIndenture Trustee, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing.
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a Indenture Trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to cure any breach of any of its obligationsrepresentations and warranties set forth in Section 3.2 or perform any covenants hereunder, which failure materially and adversely affects the interests of the Noteholders or Insurer for a period of 30 days after the Master Servicer's discovery or receipt of notice thereof from the Indenture Trustee, the Insurer, or Noteholders evidencing not less than 25% of the Note Balance; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written consent of the Insurer.
(v) The Master Servicer shall fail to make any required Servicing Advance which failure continues for thirty (30) days or more after written notice from the Insurer if such failure has a material and adverse affect on Net Liquidation Proceeds, in the sole determination of the Insurer. then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, with respect to an Event of Servicing Termination specified in (i) through (iv), above, either the Trustee, the Credit Enhancer Indenture Trustee or the Holders of Investor Certificates Noteholders evidencing Percentage Interests aggregating not less than 51% of the Note Balance in each case with the written consent of the Credit EnhancerInsurer, or the Insurer, by notice then given in writing to the Master Servicer (and to the Indenture Trustee if given by the Credit Enhancer or Insurer of the Holders of Investor CertificatesNoteholders) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice to the Master Servicer shall also be given to each Rating Agency and the Credit Enhancer. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant to and under this Section 8.01; and, without limitation, the Trustee is hereby authorized and empowered to execute and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Master Servicer agrees to cooperate with the Trustee in effecting the termination of the responsibilities and rights of the Master Servicer hereunder, including, without limitation, the transfer to the Trustee for the administration by it of all cash amounts that shall at the time be held by the Master Servicer and to be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the Mortgage Loans. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Days, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master 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 Master Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Termination.this
Appears in 1 contract
Sources: Sale and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1999-A)
Events of Servicing Termination. If (a) The Trustee (acting upon the request of the Owners of the majority of the Percentage Interests of the Offered Certificates then Outstanding as a whole and not on a Class by Class basis) or the Seller may immediately remove the related Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events and the expiration of the related cure period ("Events provided, that the occurrence of Servicing Termination") any such events with respect to one Servicer shall occur and be continuing:cause to remove only such Servicer):
(i) Any Such Servicer shall fail to deliver to the Trustee any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure by the Master Servicer to deposit in the Collection Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of five two Business Days (or, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which following written notice to an Authorized Officer of such failure shall have been given to the Master Servicer by from the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master Such Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of its effecting any of the foregoing;
(iii) If without the application, approval or consent of such Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of such Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or voluntarily suspend payment of its obligations; then, and in each and every such case, so long as an Event of Servicing Termination shall not have been remedied by the Master Servicer, similar entity with respect to such Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by such Servicer in good faith, the same shall (A) result in the entry of an Event order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of Servicing Termination sixty (60) consecutive days;
(iv) Such Servicer shall fail to perform any one or more of its obligations hereunder (other than those specified in item (i) through above) and shall continue in default thereof for a 110 117 period of forty-five (iv)45) days after the earlier of (x) notice by the Trustee of said failure or (y) actual knowledge of a responsible officer of such Servicer;
(v) The failure of such Servicer to satisfy the Servicer Termination Test; or
(vi) (a) In the case of Advanta, aboveAdvanta Mortgage Corp. USA consolidated with Advanta Mortgage Holding Corp. shall fail to maintain a net worth of at least $20 million; or (b) in the case of Long Beach, either it shall fail to maintain a net worth of $30 million; or (c) in the case of Option One, it shall fail to maintain a net worth of at least $20 million. The Trustee shall determine on each Payment Date whether the Servicer Termination Test is satisfied for the related Remittance Period. Upon the Trustee's determination that the Servicer Termination Test is not satisfied, or that a payment of Compensating Interest, a Monthly Remittance Amount for the related Group, or a required Delinquency Advance has not been made by the relevant Servicer, the Credit Enhancer or Trustee shall so notify in writing an Authorized Officer of such Servicer and the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 51% with the consent of the Credit Enhancer, by Seller as soon as is reasonably practical.
(b) Any party exercising any termination rights under Subsection (a) above shall give notice then given in writing to the Master relevant Servicer (and a copy to the Trustee if given by Trustee) of the Credit Enhancer or the Holders termination of Investor Certificates) may terminate all of the rights and obligations of the Master such Servicer as servicer under this Agreement. Any such The Trustee shall mail a copy of any notice given by it hereunder to the Master Servicer shall also be given to each Depositor, the Seller, the Owners and Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master such Servicer of such written notice, all authority and power of the Master such Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under this Section 8.01; or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the successor Servicer or the Trustee in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the successor Servicer or to the Trustee for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Mortgage Files to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 or the Trustee shall be paid by the predecessor Master Servicer Servicer.
(or if the predecessor Master Servicer c) If any event described in subsection (a)(vi) above occurs and is continuing, during a 30 day period following receipt of notice, the Trustee, the initial Master Servicer) upon presentation of reasonable documentation affected Servicer and the Seller shall cooperate with each other to determine if the occurrence of such costs and expensesevent is likely to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. Notwithstanding If the foregoingSeller, in its reasonable discretion, concludes that the event is not likely to have a delay in or failure of performance under Section 8.01(i) for material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of ten Business Days or under Section 8.01(ii) for 90 days from the date of such determination by Seller to cure such default. If the Seller, in its reasonable discretion, concludes that the event is likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 60 Business Days15 days from the date of such determination by Seller to cure such default. The date of determination by Seller referenced in the preceding two sentences of this Section 8.20(c) shall be deemed to be the date upon which a written notice is mailed to the affected Servicer, shall first class postage prepaid, at the address of the affected Servicer set forth in Section 11.20 hereof. If the event is not constitute an Event of Servicing Termination if such delay or failure could not be prevented cured by the exercise end of reasonable diligence by the Master Servicer applicable period, no further extension of the cure period is required, and such delay or failure was caused by an act of God or Servicer may be terminated as provided in this section. 111 118 (d) The Seller and 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 Master Servicer from using its Trustee agree to use their best efforts to perform its respective obligations in a timely manner in accordance with inform each other of any materially adverse information regarding each Servicer's servicing activities that comes to the terms of this Agreement and the Master Servicer shall provide the Trustee, the Transferor, the Credit Enhancer and the Investor Certificateholders with an Officers' Certificate giving prompt notice attention of such failure or delay by it, together with a description of its efforts party from time to so perform its obligations. The Master Servicer shall immediately notify the Trustee in writing of any Events of Servicing Terminationtime.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1997-3)
Events of Servicing Termination. If (a) The Trustee or the Master Servicer (each with the consent of the Certificate Insurer) or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Servicer (including any one successor entity serving as the Servicer) upon the occurrence of any of the following events ("Events of Servicing Termination") shall occur and be continuingevents:
(i) Any failure by The Servicer shall fail to deliver to the Trustee or the Master Servicer to deposit in the Collection Account any deposit proceeds or required to be made under the terms of this Agreement payment, which failure continues unremedied for a period of five Business Days (orfollowing written notice to an Authorized Officer of the Servicer from the Trustee, if the Master Servicer is permitted to remit collections on a monthly basis pursuant to Section 3.02(b), three Business Days) after the date upon which written notice of such failure shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; orfrom any Owner;
(ii) Failure on the part of the Master The Servicer duly to observe shall (I) apply for or perform in any material respect any other covenants or agreements of the Master Servicer set forth in the Certificates or in this Agreement, which failure materially and adversely affects the interests of the Certificateholders or the Credit Enhancer and continues unremedied for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Master Servicer by the Trustee or to the Master Servicer and the Trustee by the Credit Enhancer or the Holders of Investor Certificates evidencing Percentage Interests aggregating not less than 25%; or
(iii) The entry against the Master Servicer of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(iv) The consent by the Master Servicer to the appointment of a receiver, trustee, conservator, receiver liquidator or liquidator in any insolvency, conservatorship, receivership, readjustment of debt, marshalling of assets and liabilities custodian or similar proceedings of entity with respect to itself or relating to the Master Servicer or of or relating to substantially all of its property; or the Master Servicer shall , (II) admit in writing its inability to pay its debts generally as they become due, (III) make a general assignment for the benefit of creditors, (IV) be adjudicated a bankrupt or insolvent, (V) commence a voluntary case under the federal bankruptcy laws of the United States of America or file a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief or seeking to take advantage of any applicable insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization statute, make an assignment or insolvency proceeding or (VI) take corporate action for the benefit purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator, custodian or similar entity with respect to the Servicer or of all or any substantial part of its creditorsassets, or voluntarily suspend payment other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days;
(iv) The Servicer shall fail to perform any one or more of its obligationsobligations hereunder (other than the obligations set out in (i) above) and shall continue in default thereof for a period of sixty (60) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; thenprovided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer; or
(v) The Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or Certificate Insurer for a period of sixty (60) days after the Servicer's discovery or receipt of notice thereof; provided, however, that if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Certificate Insurer.
(b) The Certificate Insurer may remove the Servicer upon the occurrence of any of the following events:
(i) a Group I Total Available Funds Shortfall or a Group II Total Available Funds Shortfall;
(ii) the failure by the Servicer to make any required Servicing Advance;
(iii) the failure by the Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer, and the continuance of such failure for a period of 30 days or such longer period as agreed to in each and every such case, so long as an Event of Servicing Termination shall not have been remedied writing by the Master ServicerCertificate Insurer.
(iv) the failure by the Servicer to make any required Delinquency Advance or to pay any Compensating Interest;
(v) if on any Payment Date the Pool Rolling Three Month Delinquency Rate exceeds 7.0% for either Mortgage Loan Group;
(vi) if on any Payment Date occurring in December of any year, commencing in December 1999, the aggregate Pool Cumulative Realized Losses for a Mortgage Loan Group over the prior twelve month period exceed 2.0% of the average Pool Principal Balance of such Mortgage Loan Group as of the close of business on the last day of each of the twelve preceding Remittance Periods;
(a) if on any of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Expected Losses for a Mortgage Loan Group for all prior Remittance Periods from the Startup Day exceed 6.5% of the Pool Principal Balance of such Mortgage Loan Group as of the Cut-Off Date, provided, however, with respect to clauses (v), (vi) and (vii), if the Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that any such event was due to circumstances beyond the control of the Servicer, such event shall not be considered an Event event of Servicing Termination specified termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the ▇▇▇▇▇▇▇▇ ▇▇▇▇r;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain "warehouse facility" line of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
(x) a default shall have occurred or been declared under any short-term or long-term indebtedness of the Servicer; or
(xi) the Servicer shall fail to maintain at least the following financial requirements, based upon its most recent financial statements:
a) shareholders' equity of at least $70 million plus 50% of the Servicer's net income since December 1, 1998.
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1. Upon the Master Servicer or the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of the Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) In the case of clauses (i) through ), (ii), (iii), (iv), above, either ) or (v) of Subsection (b) the Trustee, the Credit Enhancer or the Holders Owners of Investor Certificates evidencing Percentage Interests aggregating not less than 5133 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Credit Enhancer, Certificate Insurer) by notice then given in writing to the Master Servicer (and a copy to the Trustee if given by and the Credit Enhancer or the Holders of Investor CertificatesMaster Servicer) may terminate all of the rights and obligations of the Master Servicer as servicer under this Agreement. Any such notice ; provided, however, that the responsibilities and duties of the initial Servicer with respect to the Master Servicer repurchase of Mortgage Loans pursuant to Section 3.4 shall also be not terminate. The Trustee shall mail a copy of any notice given by it hereunder to each the Rating Agency and the Credit EnhancerAgencies. On or after the receipt by the Master Servicer of such written notice, all authority and power of the Master Servicer under this Agreement, whether with respect to the Certificates or the Mortgage Loans or otherwise, shall without further action pass to and be vested in the Trustee pursuant to and under Master Servicer (for this Section 8.01; purpose, the term includes an affiliate thereof) or such successor Servicer as may be appointed hereunder, and, without limitation, the Trustee is hereby authorized and empowered (which authority and power are coupled with an interest and are irrevocable) to execute and deliver, on behalf of the Master predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, instruments and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of or termination, whether to complete the transfer and endorsement of each the Mortgage Loan Loans and related documents, documents or otherwise. The Master predecessor Servicer agrees to shall cooperate with the Trustee successor Servicer or the Master Servicer in effecting the termination of the responsibilities and rights of the Master predecessor Servicer hereunder, including, without limitation, under this Agreement including the transfer to the Trustee successor Servicer or to the Master Servicer for the administration by it of all cash amounts accounts that shall at the time be held by the Master predecessor Servicer and to for deposit or shall thereafter be deposited by it in the Collection Account, or that have been deposited by the Master Servicer in the Collection Account or thereafter received by the Master Servicer with respect to the a Mortgage LoansLoan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Mortgage Files and the other necessary data to the successor Master Servicer and amending this Agreement to reflect such succession as Master Servicer pursuant to this Section 8.01 8.20 or Section 8.21 shall be paid by the predecessor Master Servicer (or if the predecessor Master Servicer is the Trustee, the initial Master Servicer) upon presentation of reasonable documentation of such costs and expenses. Notwithstanding .
(d) If any event described in subsections (a) or (b) above occurs and is continuing, during the foregoing30 day period following receipt of notice, a delay in or failure of performance under Section 8.01(i) for a period of ten Business Days or under Section 8.01(ii) for a period of 60 Business Daysthe Trustee, shall not constitute an Event of Servicing Termination if such delay or failure could not be prevented by the exercise of reasonable diligence by the Master Servicer and the Certificate Insurer shall cooperate with each other to determine if the occurrence of such delay event is more likely than not the result of the acts or failure was caused by an act omissions of God the Servicer or more likely than not the public enemyresult of events beyond the control of the Servicer. If the Trustee, 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 Master Servicer from using its best efforts to perform its respective obligations and the Certificate Insurer conclude that the event is the result of the latter, the Servicer may not be terminated, unless and until some other event set forth in a timely manner subsection (a) or (b) has occurred and is continuing. If the Trustee, the Master Servicer and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Servicer in accordance with the terms of this Agreement Section, and the Master Servicer shall provide act as successor Servicer or appoint a successor Servicer. If the Trustee, the TransferorMaster Servicer and the Certificate Insurer cannot agree, and the basis for such disagreement is not arbitrary or unreasonable, as to the cause of the event, the Credit Enhancer decision of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, each of the Trustee and the Investor Certificateholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Master Servicer shall immediately notify be relieved of their obligation to assume the servicing or to appoint a successor, which shall be the exclusive obligation of the Certificate Insurer. For purposes of this Section 8.20, neither the Trustee nor the Master Servicer shall be deemed to have knowledge of an Event of Default unless a Responsible Officer of the Trustee and the Master Servicer assigned to and working in writing the Corporate Trust Office has actual knowledge thereof or unless written notice of any Events event which is in fact such an Event of Servicing TerminationDefault is received by the Trustee or the Master Servicer, as applicable, and such notice references the Certificates, the Trust or this Agreement. The Certificate Insurer agrees to use its best efforts to inform the Trustee and the Master Servicer of any materially adverse information regarding the Servicer's servicing activities that comes to the attention of the Certificate Insurer from time to time.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-4)