Events of Servicing Termination. (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 successor entity serving as the Servicer) upon the occurrence of any of the following events: (i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer or from any Owner; (ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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; 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; 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 writing 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; (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 of termination of the Servicer. (viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr; (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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master Servicer) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor 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 Master Servicer 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 Master Servicer 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 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 this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master 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 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 Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-4)
Events of Servicing Termination. (a) The Trustee or the Master Servicer 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 successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer Oversight Agent or from any Owner;
(ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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 Oversight Agent or the Certificate 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 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 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 writing 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;
(vi) if on any Payment Date occurring in December March of any year, commencing in December 1999March 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick Xxxxx Xxxxxxx no longer being the xxxxxxxx xxxxrmajority owner;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain committed "warehouse facility" line 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 Master Servicer 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 Master Servicer 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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master ServicerOversight Agent) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer Oversight Agent (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or 77 the Master Servicer Oversight Agent in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Oversight Agent for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor 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 Master Servicer 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 Master Servicer 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 Master Servicer 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 Master Servicer Oversight Agent shall act as successor Servicer or appoint unless a successor ServicerServicer is otherwise appointed hereunder. If the Trustee, the Master Servicer Oversight Agent 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 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 Master Servicer shall 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 Oversight Agent shall be deemed to have knowledge of an Event of Default unless a Responsible Officer of (i) the Trustee and the Master Servicer assigned to and working in the Corporate Trust Office Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Trustee or the Master ServicerOversight Agent, 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 Oversight Agent 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-1)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate InsurerOwners 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 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) Seller may immediately remove the related Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:events and the expiration of the related cure period (provided, that the occurrence of any such events with respect to one Servicer shall be cause to remove only such Servicer): 108
(i) The Such Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the such Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Such Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the 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 the 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 similar entity with respect to the 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 the such 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 sixty (7560) consecutive days;
(iv) The Such Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out those specified in item (i) above) and shall continue in default thereof for a period of sixty forty-five (6045) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the such Servicer; 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; or;
(v) The failure of such 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 satisfy 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) Termination Test. The Certificate Insurer may remove Trustee shall determine on each Payment Date whether the Servicer upon Termination Test is satisfied for 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 writing 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;
(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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(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 3:1Collection Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the relevant Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of such Servicer, the Master Servicer and the Certificate Insurer Seller as soon as is reasonably practical.
(c) In the case of clauses (i), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance Any party exercising any termination rights under subsection (with the consent of the Certificate Insurera) by above shall give notice then given in writing to the relevant Servicer (and a copy to the Trustee and the Master Servicer) may terminate of the termination of all of the rights and obligations of the such Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners and Rating Agencies. On or after the receipt by the such Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor 109 Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections subsection (a) or (ba)(vi) above occurs and is continuing, during the a 30 day period following receipt of notice, the Trustee, the Master Servicer, the affected Servicer and the Certificate Insurer Seller 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 to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. If the TrusteeSeller, in its reasonable discretion, concludes that the event is not likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 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 15 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, first class postage prepaid, at the address of the affected Servicer set forth in Section 11.20 hereof. If the event is not cured by the end of 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 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 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 this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master 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 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 Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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 agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the each Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Securities Corp)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate InsurerOwners 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 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) Seller may immediately remove the related Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:events and the expiration of the related cure period (provided, that the occurrence of any such events with respect to one Servicer shall be cause to remove only such Servicer):
(i) The Such Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the such Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Such Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the 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 the 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 similar entity with respect to the 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 the such 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 sixty (7560) consecutive days;
(iv) The Such Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out those specified in item (i) above) and shall continue in default thereof for a period of sixty forty-five (6045) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the such Servicer; 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; or;
(v) The failure of such 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 satisfy 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 writing 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;Termination Test; or
(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 In the case of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Advanta, Advanta Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Corp. USA consolidated with Advanta 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(ix) commencing June 30, 1999, the Servicer Holding Corp. shall fail to maintain "warehouse facility" line a net worth of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
20 million; or (xb) a default shall have occurred or been declared under any short-term or long-term indebtedness in the case of the Servicer; or
(xi) the Servicer Ameriquest, it shall fail to maintain at least a net worth of $30 million; or (c) in the following financial requirementscase of Wendover, based upon its most recent financial statements:
a(1) shareholders' equity Wendover shall fail to maintain a net worth of at least $70 million plus 50% 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's net income since December 1, 1998.
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1Servicer Termination Test is satisfied for the related Remittance Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the relevant Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of the such Servicer and the Certificate Insurer Seller as soon as is reasonably practical.
(c) In the case of clauses (i), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance Any party exercising any termination rights under subsection (with the consent of the Certificate Insurera) by above shall give notice then given in writing to the relevant Servicer (and a copy to the Trustee and Trustee) of the Master Servicer) may terminate termination of all of the rights and obligations of the such Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners and Rating Agencies. On or after the receipt by the such Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections subsection (a) or (ba)(vi) above occurs and is continuing, during the a 30 day period following receipt of notice, the Trustee, the Master affected Servicer and the Certificate Insurer Seller 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 to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is not likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 90 days from the result date 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 continuingsuch 112 determination by Seller to cure such default. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is the result of the formerlikely to have a material adverse effect on such Servicer's ability to perform hereunder, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master Servicer and the Certificate Insurer cannot agree, and the basis for then 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 the Servicer, each of the Trustee and the Master Servicer shall be relieved given a period of their obligation 15 days from the date of such determination by Seller to assume cure such default. The date of determination by Seller referenced in the servicing or to appoint a successor, which shall be the exclusive obligation of the Certificate Insurer. For purposes preceding two sentences of this Section 8.20, neither the Trustee nor the Master Servicer 8.20(c) shall be deemed to have knowledge of an Event of Default unless be the date upon which a Responsible Officer written notice is mailed to the affected Servicer, first class postage prepaid, at the address of the Trustee and affected Servicer set forth in Section 11.20 hereof. If the Master Servicer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received not cured by the Trustee or end of the Master Servicerapplicable period, as applicableno further extension of the cure period is required, and such notice references Servicer may be terminated as provided in this Section 8.20.
(d) The Seller and the Certificates, the Trust or this Agreement. The Certificate Insurer agrees Trustee agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the each Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1998-1)
Events of Servicing Termination. (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 successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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 Trustee or the Certificate 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 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 writing 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;
(vi) if on any Payment Date occurring in December September of any year, commencing in December September 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;; or
(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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master ServicerTrustee) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect 77 to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer Trustee (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor 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 Master Servicer 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. If the Trustee, the Master Servicer Trustee 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 Master Servicer Trustee 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 Master Servicer Trustee shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master Servicer Trustee 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 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 Master Servicer shall be relieved of their its 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 not 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-3)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate InsurerOwners 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 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) Seller may immediately remove the related Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:events and the expiration of the related cure period (provided, that the occurrence of any such events with respect to one Servicer shall be cause to remove only such Servicer):
(i) The Such Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the such Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Such Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the 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 the 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 similar entity with respect to the 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 the such 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 sixty (7560) consecutive days;
(iv) The Such Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out those specified in item (i) above) and shall continue in default thereof for a 110 117 period of sixty forty-five (6045) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the such Servicer; 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; or;
(v) The failure of such 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 satisfy 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 writing 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;Termination Test; or
(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 In the case of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Advanta, Advanta Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Corp. USA consolidated with Advanta 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(ix) commencing June 30, 1999, the Servicer Holding Corp. shall fail to maintain "warehouse facility" line a net worth of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
20 million; or (xb) a default shall have occurred or been declared under any short-term or long-term indebtedness in the case of the Servicer; or
(xi) the Servicer Long Beach, it shall fail to maintain at least a net worth of $30 million; or (c) in the following financial requirementscase of Option One, based upon its most recent financial statements:
a) shareholders' equity it shall fail to maintain a net worth of at least $70 million plus 50% of 20 million. The Trustee shall determine on each Payment Date whether the Servicer's net income since December 1, 1998.
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1Servicer Termination Test is satisfied for the related Remittance Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the relevant Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of the such Servicer and the Certificate Insurer Seller as soon as is reasonably practical.
(cb) In the case of clauses (i), (ii), (iii), (iv) or (v) of Any party exercising any termination rights under Subsection (ba) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by above shall give notice then given in writing to the relevant Servicer (and a copy to the Trustee and Trustee) of the Master Servicer) may terminate termination of all of the rights and obligations of the such Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners and Rating Agencies. On or after the receipt by the such Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections subsection (a) or (ba)(vi) above occurs and is continuing, during the a 30 day period following receipt of notice, the Trustee, the Master affected Servicer and the Certificate Insurer Seller 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 to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is not likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 90 days from the result date 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 continuingsuch determination by Seller to cure such default. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is the result of the formerlikely to have a material adverse effect on such Servicer's ability to perform hereunder, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master Servicer and the Certificate Insurer cannot agree, and the basis for then 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 the Servicer, each of the Trustee and the Master Servicer shall be relieved given a period of their obligation 15 days from the date of such determination by Seller to assume cure such default. The date of determination by Seller referenced in the servicing or to appoint a successor, which shall be the exclusive obligation of the Certificate Insurer. For purposes preceding two sentences of this Section 8.20, neither the Trustee nor the Master Servicer 8.20(c) shall be deemed to have knowledge of an Event of Default unless be the date upon which a Responsible Officer written notice is mailed to the affected Servicer, first class postage prepaid, at the address of the Trustee and affected Servicer set forth in Section 11.20 hereof. If the Master Servicer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received not cured by the Trustee or end of the Master Servicerapplicable period, as applicableno further extension of the cure period is required, and such notice references Servicer may be terminated as provided in this section. 111 118 (d) The Seller and the Certificates, the Trust or this Agreement. The Certificate Insurer agrees Trustee agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the each Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mort Loan Trust 1997-3)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate InsurerOwners 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 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) Seller may immediately remove the related Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:events and the expiration of the related cure period (provided, that the occurrence of any such events with respect to one Servicer shall be cause to remove only such Servicer):
(i) The Such Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the such Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Such Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the 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 the 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 similar entity with respect to the 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 the such 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 sixty (7560) consecutive days;
(iv) The Such Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out those specified in item (i) above) and shall continue in default thereof for a period of sixty forty-five (6045) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the such Servicer; 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; or;
(v) The failure of such 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 satisfy 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 writing 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;Termination Test; or
(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 In the case of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Advanta, Advanta Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Corp. USA consolidated with Advanta 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(ix) commencing June 30, 1999, the Servicer Holding Corp. shall fail to maintain "warehouse facility" line a net worth of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
20 million; or (xb) a default shall have occurred or been declared under any short-term or long-term indebtedness in the case of the Servicer; or
(xi) the Servicer Ameriquest, it shall fail to maintain at least a net worth of $30 million; or (c) in the following financial requirementscase of Option One, based upon its most recent financial statements:
a) shareholders' equity it shall fail to maintain a net worth of at least $70 million plus 50% of 20 million. The Trustee shall determine on each Payment Date whether the Servicer's net income since December 1, 1998.
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1Servicer Termination Test is satisfied for the related Remittance Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the relevant Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of the such Servicer and the Certificate Insurer Seller as soon as is reasonably practical.
(cb) In the case of clauses (i), (ii), (iii), (iv) or (v) of Any party exercising any termination rights under Subsection (ba) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by above shall give notice then given in writing to the relevant Servicer (and a copy to the Trustee and Trustee) of the Master Servicer) may terminate termination of all of the rights and obligations of the such Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners and Rating Agencies. On or after the receipt by the such Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections subsection (a) or (ba)(vi) above occurs and is continuing, during the a 30 day period following receipt of notice, the Trustee, the Master affected Servicer and the Certificate Insurer Seller 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 to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is the result not likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period 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 continuing90 days to cure such default. If the TrusteeSeller, the Master Servicer and the Certificate Insurer conclude in its reasonable discretion, concludes that the event is the result of the formerlikely to have a material adverse effect on such Servicer's ability to perform hereunder, the Certificate Insurer may terminate the Servicer in accordance with this Section, and the Master then such Servicer shall act as successor Servicer or appoint be given a successor Servicerperiod of 15 days to cure such default. If the Trustee, the Master Servicer and the Certificate Insurer cannot agree, and the basis for such disagreement event is not arbitrary or unreasonable, as to cured by the cause end of the eventapplicable period, the decision no further extension of the Certificate Insurer shall control; provided, however, that if the Certificate Insurer decides to terminate the Servicer, each of the Trustee and the Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which cure period is in fact such an Event of Default is received by the Trustee or the Master Servicer, as applicablerequired, and such notice references Servicer may be terminated as provided in this section.
(d) The Seller and the Certificates, the Trust or this Agreement. The Certificate Insurer agrees Trustee agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the each Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1997-2)
Events of Servicing Termination. (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 successor entity serving as the Servicer) upon the occurrence of If any of the following eventsevents (each, an "Event of Servicing Termination") shall occur and be continuing:
(ia) The Any failure by the Servicer or the Seller to make any payment or deposit required to be made by it hereunder and the continuance of such failure for a period of two (2) Business Days after the date upon which written notice of such failure shall fail to deliver have been given to the Trustee Servicer or the Master Seller by the Trustee; or
(b) Failure on the part of the Servicer or the Seller to observe or perform any proceeds term, covenant or required paymentagreement in this Agreement, which failure materially adversely affects the rights of the Certificateholders and which continues unremedied for five Business Days following 30 days after the date on which written notice of such failure, requiring the same to an Authorized Officer of be remedied, shall have been given to the Servicer from or the Seller by the Trustee, ; or
(c) Any proceeding shall be instituted against the Master Servicer or from the Seller (or, if the Servicer or the Seller is actively contesting the merits thereof, such proceeding is not dismissed within 60 days after the filing thereof) seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or any Owner;
(ii) The Servicer shall (I) apply 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 consent to the appointment of a receiver, trustee, liquidator or custodian or other similar entity with respect to itself official for it or for any substantial part of its property, or any of the actions sought in such proceeding (IIincluding, 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) admit shall occur; or
(d) The commencement by the Servicer or the Seller 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 of a decree or order for relief in writing respect of the Servicer or the Seller 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 it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Servicer or of any substantial part of its inability to pay its debts generally as they become dueproperty, (III) make a general or the making by it of an 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 insolvency law or file an answer admitting the material allegations of a petition filed against admission by it in any bankruptcywriting of its inability to pay its Debts generally as they become due, reorganization or insolvency proceeding or (VI) take the taking of corporate action for the 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 by the Servicer or the Seller in furtherance 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 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 obligations 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; 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; or
(ve) The Servicer or the Seller 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 deliver 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 report expressly required 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 Insurerthis Agreement, and the continuance of such failure for a period of 30 days five Business Days after the date upon which written notice of such failure shall have been given to the Servicer or such longer period as agreed to in writing the Seller 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;
(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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(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 ServicerTrustee; or
(xif) There is at any time a breach of any of the representations and warranties of the Servicer set forth in Section 4.03 or the Seller set forth in Section 3.01 which breach would have a material adverse effect on the interests of the Certificateholders; then, and in any such event, the Trustee may, by delivery to the Servicer of a written notice specifying the occurrence of any of the foregoing events, terminate the servicing and custodial responsibilities of the Servicer hereunder, without demand, protest or further notice of any kind, all of which are hereby waived by the Servicer; PROVIDED, that, in the event any of the events described in subsection (c) or (d) shall have occurred, termination of the duties and responsibilities of the Servicer shall fail to maintain at least the following financial requirementsautomatically occur, based upon its most recent financial statements:
a) shareholders' equity without, demand, protest or further notice of at least $70 million plus 50% any kind, all 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 which are expressly waived 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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master Servicer) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy simultaneously with any declaration of any Event of Servicing Termination, give notice given by it hereunder thereof to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor 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 Master Servicer 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 Master Servicer 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 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 this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master 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 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 Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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
Samples: Pooling and Servicing Agreement (Eagle Finance Corp)
Events of Servicing Termination. (a) The Trustee or the Master Servicer 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 successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer Oversight Agent or from any Owner;
(ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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 Master Servicer Oversight Agent or the Certificate 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 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 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 writing 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;
(vi) if on any Payment Date occurring in December June of any year, commencing in December 1999June 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick Xxxxx Xxxxxxx no longer being the xxxxxxxx xxxxrmajority owner;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain committed "warehouse facility" line 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 Master Servicer 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 Master Servicer 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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master ServicerOversight Agent) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer Oversight Agent (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Oversight Agent in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Oversight Agent for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with the transfer of servicing, including, without limitation, transferring the Files and the other necessary data to the successor 203968.5d Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesexpenses (but only to the extent the Oversight Agent has not been previously reimbursed therefor under Section 7.5(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 Master Servicer 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 Master Servicer 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 Master Servicer 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 Master Servicer Oversight Agent shall act as successor Servicer or appoint unless a successor ServicerServicer is otherwise appointed hereunder. If the Trustee, the Master Servicer Oversight Agent 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 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 Master Servicer shall 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 Oversight Agent shall be deemed to have knowledge of an Event of Default unless a Responsible Officer of (i) the Trustee and the Master Servicer assigned to and working in the Corporate Trust Office Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Trustee or the Master ServicerOversight Agent, 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 Oversight Agent 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-2)
Events of Servicing Termination. (a) The Trustee or the Master Servicer 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 successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer Oversight Agent or from any Owner;
(ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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 Oversight Agent or the Certificate 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 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 writing 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, except that following a transition to a successor servicer, this Section 8.20(b)(v) shall not apply to such successor servicer for a period of 90 days after the appointment of such successor servicer as Servicer hereunder;
(vi) if on any Payment Date occurring in December June of any year, commencing in December 1999June 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 of 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 xxxxxxxx xxxxrmajority xxxxx;
(ix) commencing June 30, 1999, the Servicer shall fail to maintain committed "warehouse facility" line 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;
(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 Master Servicer Oversight Agent or the Trusteethx Xxxxtee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Servicer, the Master Servicer 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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master ServicerOversight Agent) may terminate all of the rights and obligations of the Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 3.5 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer Oversight Agent (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Oversight Agent in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Oversight Agent for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with the transfer of servicing, including, without limitation, transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesexpenses (but only to the extent the Oversight Agent has not been previously reimbursed therefor under Section 7.5(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 Master Servicer 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 Master Servicer 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 Master Servicer 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 Master Servicer Oversight Agent shall act as successor Servicer or appoint unless a successor ServicerServicer is otherwise appointed hereunder. If the Trustee, the Master Servicer Oversight Agent 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 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 Master Servicer shall 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 Oversight Agent shall be deemed to have knowledge of an Event of Default unless a Responsible Officer of (i) the Trustee and the Master Servicer assigned to and working in the Corporate Trust Office Office, or (ii) the Oversight Agent, respectively, has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Trustee or the Master ServicerOversight Agent, 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 Oversight Agent 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1999-4)
Events of Servicing Termination. (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 successor entity serving as the Servicer) upon the occurrence of any of the following events:
(i) The Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 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 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 obligations 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 Trustee or the Certificate Insurer of said failure or (y) actual knowledge of an officer of the Servicer; providedPROVIDED, howeverHOWEVER, 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; providedPROVIDED, howeverHOWEVER, 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 writing 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%;
(vi) if on any Payment Date occurring in December of any year, commencing in December 19991997, 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;; or
(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, providedPROVIDED, howeverHOWEVER, 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(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), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance (with the consent of the Certificate Insurer) by notice then given in writing to the Servicer (and a copy to the Trustee and the Master ServicerTrustee) may terminate all of the rights and obligations of the Servicer under this Agreement; providedPROVIDED, howeverHOWEVER, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Rating Agencies. On or after the receipt by the Servicer of such written notice, all authority and power of the 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 Master Servicer Trustee (for this 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 shall be paid by the predecessor 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 Master Servicer 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. If the Trustee, the Master Servicer Trustee 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 Master Servicer Trustee 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 Master Servicer Trustee shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master Servicer Trustee 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 decision of the Certificate Insurer shall control; providedPROVIDED, howeverHOWEVER, that if the Certificate Insurer decides to terminate the Servicer, each of the Trustee and the Master Servicer shall be relieved of their its 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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
Samples: Pooling and Servicing Agreement (First Alliance Mortgage Loan Trust 1996-4)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate InsurerOwners 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 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) Seller may immediately remove the related Servicer (including any successor entity serving as the Servicer) upon the occurrence of any of the following events:events and the expiration of the related cure period (provided, that the occurrence of any such events with respect to one Servicer shall be cause to remove only such Servicer):
(i) The Such Servicer shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the such Servicer from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Such Servicer shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the 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 the such Servicer an 113 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 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 the such 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 sixty (7560) consecutive days;
(iv) The Such Servicer shall fail to perform any one or more of its obligations hereunder (other than the obligations set out those specified in item (i) above) and shall continue in default thereof for a period of sixty forty-five (6045) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the such Servicer; 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; or;
(v) The failure of such 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 satisfy 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 writing 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;Termination Test; or
(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 In the case of the first 60 Payment Dates from the Startup Day the aggregate Pool Cumulative Expected Losses for a Advanta, Advanta Mortgage Loan Group for all prior Remittance Periods since the Startup Day exceed 5.0% of the Pool Principal Balance of such Corp. USA consolidated with Advanta 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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(ix) commencing June 30, 1999, the Servicer Holding Corp. shall fail to maintain "warehouse facility" line a net worth of credit or loan agreements entitling the Servicer to borrow at least $100 million against its mortgage loan inventory;
20 million; or (xb) a default shall have occurred or been declared under any short-term or long-term indebtedness in the case of the Servicer; or
(xi) the Servicer Ameriquest, it shall fail to maintain at least a net worth of $30 million; or (c) in the following financial requirementscase of Wendover, based upon its most recent financial statements:
a(1) shareholders' equity Wendover shall fail to maintain a net worth of at least $70 million plus 50% 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's net income since December 1, 1998.
b) a ratio of total liabilities to shareholders' equity of no greater than 3:1Servicer Termination Test is satisfied for the Collection Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the relevant Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of such Servicer, the Master Servicer and the Certificate Insurer Seller as soon as is reasonably practical.
(c) In the case of clauses (i), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance Any party exercising any termination rights under subsection (with the consent of the Certificate Insurera) by above shall give notice then given in writing to the relevant Servicer (and a copy to the Trustee and the Master Servicer) may terminate of the termination of all of the rights and obligations of the such Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners and Rating Agencies. On or after the receipt by the such Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer shall cooperate with the successor Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement including the transfer to the successor Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections subsection (a) or (ba)(vi) above occurs and is continuing, during the a 30 day period following receipt of notice, the Trustee, the Master Servicer, the affected Servicer and the Certificate Insurer Seller 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 to have a material adverse effect on such Servicer's ability to perform its obligations under this Agreement. If the TrusteeSeller, in its reasonable discretion, concludes that the event is not likely to have a material adverse effect on such Servicer's ability to perform hereunder, then such Servicer shall be given a period of 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 15 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, first class postage prepaid, at the address of the affected Servicer set forth in Section 11.20 hereof. If the event is not cured by the end of 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 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 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 this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master 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 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 Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default 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 agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the each Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Securities Corp Mortgage Loan Tr 1998-2)
Events of Servicing Termination. (a) The Trustee or (acting upon the Master Servicer (each with the consent request of the Certificate Insurer) or Owners of at least 50% of the Certificate Insurer (or Percentage Interests of the Owners pursuant Offered Certificates then Outstanding with respect to Section 6.11 hereofeither of the Mortgage Loan Groups) may immediately remove the Servicer or the Special Servicer (including any successor entity serving or both the Servicer and the Special Servicer in the case of clause (v)) as the Servicer) Servicer or Special Servicer of such Mortgage Loan Group upon the occurrence of any of the following eventsevents and the expiration of the related cure period:
(i) The Servicer or the Special Servicer, as applicable, shall fail to deliver to the Trustee or the Master Servicer any proceeds or required payment (including any Delinquency Advance or Compensating Interest payment), which failure continues unremedied for five two Business Days following written notice to an Authorized Officer of the Servicer or the Special Servicer, as applicable, from the Trustee, the Master Servicer Trustee or from any Owner;
(ii) The Servicer or the Special Servicer, as applicable, shall (I) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (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 insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (VI) take corporate action for the 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 assets, or 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 seventy-five sixty (7560) 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 the obligations set out those specified in item (i) above) and shall continue in default thereof for a period of sixty thirty (6030) days after the earlier of (x) notice by the Trustee, the Master Servicer or the Certificate Insurer Trustee of said failure or (y) actual knowledge of an a responsible officer of the Servicer and the Special Servicer; 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 Insureras applicable; 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 failure of the Owners or Certificate Insurer for a period of sixty (60) days after Servicer and the Servicer's discovery or receipt of notice thereof; provided, however, that if Special Servicer to satisfy 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 writing 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;Termination Test; or
(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 of termination of the Servicer.
(viii) there shall be a change in control of the Servicer which results in Brian Chisick no longer being the xxxxxxxx xxxxr;
(ix) commencing June 30, 1999, the The Servicer shall fail to maintain "warehouse facility" line a net worth of credit or loan agreements entitling $20 million. The Trustee shall determine on each Payment Date whether 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 Termination Test is satisfied for 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 3:1Collection Period. Upon the Master Servicer or 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 or payment of Compensating Interest has not been made by the Servicer or the Special Servicer, the Master Servicer or the Trustee shall so notify in writing an Authorized Officer of the Servicer or the Special Servicer and the Certificate Insurer Master Servicer, the Guarantor and the Seller as soon as is reasonably practical.
(c) In the case of clauses (i), (ii), (iii), (iv) or (v) of Subsection (b) the Owners of Certificates evidencing not less than 33 1/3% of the aggregate Class A Certificate Principal Balance Any party exercising any termination rights under subsection (with the consent of the Certificate Insurera) by above shall give notice then given in writing to the Servicer or the Special Servicer (and a copy to the Trustee Trustee, the Guarantor and the Master Servicer) may terminate of the termination of all of the rights and obligations of the Servicer or the Special Servicer under this Agreement; provided, however, that the responsibilities and duties of the initial Servicer with respect to the repurchase of Mortgage Loans pursuant to Section 3.4 shall not terminate. The Trustee shall mail a copy of any notice given by it hereunder to the Depositor, the Seller, the Owners, the Guarantor and Rating Agencies. On or after the receipt by the Servicer or the Special Servicer of such written notice, all authority and power of the 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 Master Servicer (for this purpose, the term includes an affiliate thereof) Trustee 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 predecessor Servicer or predecessor Special 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 or termination, whether to complete the transfer and endorsement of the Mortgage Loans and related documents or otherwise. The predecessor Servicer or predecessor Special Servicer shall cooperate with the successor Servicer or successor Special Servicer or the Master Servicer Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer or predecessor Special Servicer under this Agreement including the transfer to the successor Servicer or successor Special Servicer or to the Master Servicer Trustee for administration by it of all cash accounts that shall at the time be held by the predecessor Servicer or predecessor Special Servicer for deposit or shall thereafter be received with respect to a Mortgage Loan. All reasonable costs and expenses (including attorneys' fees) incurred in connection with transferring delivering the Files and the other necessary data to the successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.20 or Section 8.21 the Trustee shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expensesServicer.
(dc) If any event described in subsections (a) or (b) above occurs and is continuingThe Seller, during the 30 day period following receipt of notice, the Trustee, the Master Servicer 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 Master Servicer 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 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 this Section, and the Master Servicer shall act as successor Servicer or appoint a successor Servicer. If the Trustee, the Master 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 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 Master Servicer shall 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 the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Trustee or the Master Servicer, as applicable, the Guarantor and such notice references the Certificates, the Trust or this Agreement. The Certificate Insurer agrees Trustee agree to use its their best efforts to inform the Trustee and the Master Servicer each other of any materially adverse information regarding the Servicer's or the Special Servicer's servicing activities that comes to the attention of the Certificate Insurer such party from time to time.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Amresco Residential Secs Corp Mort Loan Trust 1998-3)
