Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events: (i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner. (ii) The Master 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 Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or (iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or (v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party. (b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events: (i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the Certificate
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Advanta Conduit Receivables Inc), Pooling and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five 98 105 Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iA) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiB) admit in writing its inability to pay its debts generally as they become due, (iiiC) make a general assignment for the benefit of creditors, (ivD) be adjudicated a bankrupt or insolvent, (vE) 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 (viF) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance, any Special Advance or to pay any Compensating Interest; or
(v) the occurrence of a Servicer Termination Loss Trigger or of a Servicer Termination Delinquency Trigger, as such terms are defined in the Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares, or any finding or ruling by a court of competent jurisdiction, that the Insurance Agreement or this Agreement is not valid and binding on the Sponsor or the Master Servicer; provided, however, with respect to clause (iv), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or Special Advance or to pay any Compensating Interest (as described in clause (iv)) or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second 100 107 Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance or Special Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or Special Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 2000-1)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, Trustee with the consent of the Certificate Insurer, or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta 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 Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(v) if on any Payment Date the Pool Rolling Three-Month Delinquency Rate exceeds 7%;
(vi) if on any Payment Date occurring in December of any year, commencing in December 1997, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 3% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any Payment Date of the first sixty Payment Dates after the Closing Day the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Closing Day exceed 8% of the Original Aggregate Loan Balance and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Closing Day exceed 12.5% of the Original Aggregate Loan Balance; 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; provided, however, that (x) prior to any removal of the Master Servicer by the Certificate Insurer pursuant to clauses (i), (ii) or (iii) of this Section 8.20(b), the Master Servicer shall first have been given by the Certificate Insurer and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Certificate Insurer to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Certificate Insurer) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1996-4)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iA) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiB) admit in writing its inability to pay its debts generally as they become due, (iiiC) make a general assignment for the benefit of creditors, (ivD) be adjudicated a bankrupt or insolvent, (vE) 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 (viF) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating 100 to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days after (or with respect to a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a)) which failure continues unremedied for two Business Days following the receipt of written notice by an Authorized Officer of such servicer from the Trustee or from any Owner after the earlier of (A) actual knowledge of an officer of the Master Servicer or (B) receipt of notice from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19; or
(vi) The breach by the Seller, as long as the Seller is an affiliate of the Master Servicer, of the covenant to (A) substitute a Qualified Replacement Mortgage Loan and deliver the Substitution Adjustment to the Master Servicer for deposit in the Collection Account or (B) purchase a Mortgage Loan, pursuant to Section 3.04(b).
(b) The Certificate Insurer may instruct the Trustee to remove the Master Servicer upon (i) the failure by the Master Servicer to make any required Servicing Advance when due or (ii) the 101 failure of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest when due. The Certificate Insurer may also may remove the Master Servicer upon the occurrence failure of the Master Servicer to satisfy the Servicer Termination Test.
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the following events:Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of the United States, any state thereof or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties imposed on it pursuant to this Agreement, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an independent opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer (such successor Master Servicer to be reasonably approved by the Certificate Insurer) shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) upon Upon removal or resignation of the making Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any Insured Paymentsuccessor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Certificate Insurer shall have no right to remove the Trustee acts as successor Master Servicer under this clause (i) if then the Seller agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer can demonstrate a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the fee described in the preceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller. 103
(j) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Inc Asset Backed Cert Series 1998 2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iA) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiB) admit in writing its inability to pay its debts generally as they become due, (iiiC) make a general assignment for the benefit of creditors, (ivD) be adjudicated a bankrupt or insolvent, (vE) 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 (viF) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days after (or with respect to a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a) which failure continues unremedied for two Business Days following the receipt of written notice by an Authorized Officer of such servicer from the Trustee or from any Owner) after the earlier of (A) actual knowledge of an officer of the Master Servicer or (B) receipt of notice from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19; or
(vi) The breach by the Seller, as long as the Seller is an affiliate of the Master Servicer, of the covenant to (A) substitute a Qualified Replacement Mortgage Loan and deliver the Substitution Adjustment to the Master Servicer for deposit in the Collection Account or (B) purchase a Mortgage Loan, pursuant to Section 3.04(b).
(b) The Certificate Insurer may instruct the Trustee to remove the Master Servicer upon (i) the failure by the Master Servicer to make any required Servicing Advance when due or (ii) the failure of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest when due. The Certificate Insurer may also may remove the Master Servicer upon the occurrence of any failure of the following events:Master Servicer to satisfy the Servicer Termination Test.
(ic) upon the making of If any Insured Payment; providedevent described in subsection (b) above occurs and is continuing, however, that the Certificate Insurer shall have no right to remove may terminate the Master Servicer under in accordance with this clause (i) if Section and the Trustee shall act as successor Master Servicer can demonstrate to the reasonable satisfaction of the CertificateServicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1999 1)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days after (or with respect to a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a)) which failure continues unremedied for two Business Days following the receipt of written notice by an Authorized Officer of such servicer from the Trustee or from any Owner after the earlier of (a) actual knowledge of an officer of the Master Servicer or (b) receipt of notice from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19; or
(vi) The breach by the Seller, as long as the Seller is an affiliate of the Master Servicer, of the covenant to (I) substitute a Qualified Replacement Mortgage Loan and deliver the Substitution Adjustment to the Master Servicer for deposit in the Collection Account or (II) purchase a Mortgage Loan, pursuant to Section 3.04(b).
(b) The Certificate Insurer may instruct the Trustee to remove the Master Servicer upon (i) the failure by the Master Servicer to make any required Servicing Advance when due or (ii) the failure of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest when due. The Certificate Insurer may also may remove the Master Servicer upon the occurrence failure of the Master Servicer to satisfy the Servicer Termination Test.
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the following events:Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of the United States, any state thereof or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties imposed on it pursuant to this Agreement, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer. 100
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer (such successor Master Servicer to be reasonably approved by the Certificate Insurer) shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) upon Upon removal or resignation of the making Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any Insured Paymentsuccessor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Certificate Insurer shall have no right to remove the Trustee acts as successor Master Servicer under this clause (i) if then the Seller agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer can demonstrate a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the reasonable satisfaction of fee described in the Certificatepreceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller.
(j) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall 101
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1998-1)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or, with the consent of the Certificate Insurer (Insurer, the Depositor or the Owners pursuant to Section 6.11 hereofof Class A Certificates evidencing at least a majority in Percentage Interest of all Class A Certificates) may remove the Master Servicer upon the occurrence of any of the following events:events (each, an "Event of Default"):
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take cause corporate action to be taken by it for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, conservator, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an 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; or
(iviii) The Master Servicer shall fail to perform any one or more of its obligations hereunder (other than the its obligations contemplated by Subsection 8.20(ireferenced in clauses (vi) above, and (vii) below) and shall continue in default thereof for a period of sixty thirty (6030) days after notice the earlier to occur of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Trustee Master Servicer of a written notice from the Trustee, any Owner, the Depositor or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.1(c) which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such breach or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Depositor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the Certificate Insurance Policy, or if the Certificate Insurer otherwise funds any shortfall with its own money, because the amounts available to the Trustee (other than from the Certificate Insurer) are insufficient to make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required Servicing Advance for a period of 30 days following the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Depositor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required Delinquency Advance, to pay any Compensating Interest or to pay over any Monthly Remittance or other amounts required to be remitted by the Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month Delinquency Rate (including all foreclosures and REO Properties) exceeds ____% during the period __________ through __________, ____% during the period __________ through __________, ____% during the period __________ through ___________, ____% during the period __________ through __________, ____% during the period __________ through __________ or ____% after __________; or
(ix) If on any Payment Date occurring in __________ of any year, commencing in __________, the aggregate Pool Cumulative Net Realized Losses over the prior twelve month period exceed ____% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net Realized Losses for all prior Remittance Periods since the Startup Day exceed ____% of the Original Pool Principal Balance; provided, however, that (x) prior to any removal of the Master Servicer pursuant to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable grace period granted by any such clause shall have expired prior to the time such occurrence shall have been remedied and (y) in the event of the refusal or inability of the Master Servicer to comply with its obligations described in clause (vii) above, such removal shall be effective (without the requirement of any action on the part of the Depositor, the Certificate Insurer or of the Trustee) at 4 p.m. New York City time on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required amount described in clause (vii) above has not been received by the Trustee, unless the required amount described in clause (vii) above is paid by the Master Servicer prior to such time or the Certificate Insurer grants an extension of time for such payment. Upon the Trustee's obtaining actual knowledge that a required amount described in clause (vii) above has not been made by the Master Servicer's discovery , the Trustee shall so notify an Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in clauses (viii), (ix) or receipt (x) of notice thereofSection 11.1(a), the Certificate Insurer may remove the Master Servicer; provided, however, that if such occurrence of an Event of Default is the result of circumstances beyond the Master Servicer's control, the Master Servicer can demonstrate to shall not be removed, and provided further, that in the reasonable satisfaction event of any disagreement between the Depositor and the Certificate Insurer, the decision of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer shall control.
(bc) The Certificate Insurer also may remove Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer upon so causing such a conflict being of a type and nature carried on by the occurrence Master Servicer at the date of any this Agreement. Any such determination permitting the resignation of the following events:Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Depositor, the Trustee and the Certificate Insurer.
(id) upon No removal or resignation of the making Master Servicer shall become effective until the Trustee or a successor Master Servicer acceptable to the Certificate Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of any Insured Paymentthe Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor Master Servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor Master Servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer; provided, however, that the Certificate Insurer Trustee shall have no right to remove not be liable for any acts, omissions or obligations of the Master Servicer under prior to such succession or for any breach by the Master Servicer of any of its representations and warranties contained in this clause Agreement or in any related document or agreement. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which (i) if has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans, (ii) has equity of not less than $__________, as determined in accordance with generally accepted accounting principles, and (iii) must have demonstrated proficiency in the servicing of mortgage loans having similar characteristics (including credit characteristics) to the Mortgage Loans, (iv) and must be acceptable to the Certificate Insurer as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Master Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 10.8 and 10.15.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Master Servicing Fees as servicing compensation (including the servicing compensation received in the form of assumption fees, late payment charges or otherwise) as provided in Sections 10.8 and 10.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Equity Securitization Corp)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or, with the consent of the Certificate Insurer (Insurer, the Seller or the Owners pursuant to Section 6.11 hereofof Class A Certificates evidencing at least a majority in Percentage Interest of all Class A Certificates) may remove the Master Servicer upon the occurrence of any of the following events:events (each, an "Event of Default"):
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 106 petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (viVI) take cause corporate action to be taken by it for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, conservator, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an 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; or
(iviii) The Master Servicer shall fail to perform any one or more of its obligations hereunder (other than the its obligations contemplated by Subsection 8.20(ireferenced in clauses (vi) above, and (vii) below) and shall continue in default thereof for a period of sixty thirty (6030) days after notice the earlier to occur of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Trustee Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.1(c) which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such breach or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the Certificate Insurance Policy, or if the Certificate Insurer otherwise funds any shortfall with its own money, because the amounts available to the Trustee (other than from the Certificate Insurer) are insufficient to make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required Servicing Advance for a period of 30 days following the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required Delinquency Advance, to pay any Compensating Interest or to pay over any Monthly Remittance or other amounts required to be remitted by the Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month Delinquency Rate (including all foreclosures and REO Properties) exceeds 4.75% during the period October 1, 1997 through September 30, 1998, 5.50% during the period October 1, 1998 107 through September 30, 1999, 6.25% during the period October 1, 1999 through September 30, 2000, 7.25% during the period October 1, 2000 through September 30, 2001, 8.25% during the period October 1, 2001 through September 30, 2002 or 10.00% after October 1, 2002; or
(ix) If on any Payment Date occurring in October of any year, commencing in October 1998, the aggregate Pool Cumulative Net Realized Losses over the prior twelve month period exceed 0.75% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net Realized Losses for all prior Remittance Periods since the Startup Day exceed 3.25% of the Original Pool Principal Balance; provided, however, that (x) prior to any removal of the Master Servicer pursuant to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable grace period granted by any such clause shall have expired prior to the time such occurrence shall have been remedied and (y) in the event of the refusal or inability of the Master Servicer to comply with its obligations described in clause (vii) above, such removal shall be effective (without the requirement of any action on the part of the Seller, the Transferor, the Certificate Insurer or of the Trustee) at 4 p.m. New York City time on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required amount described in clause (vii) above has not been received by the Trustee, unless the required amount described in clause (vii) above is paid by the Master Servicer prior to such time or the Certificate Insurer grants an extension of time for such payment. Upon the Trustee's obtaining actual knowledge that a required amount described in clause (vii) above has not been made by the Master Servicer's discovery , the Trustee shall so notify an Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in clauses (viii), (ix) or receipt (x) of notice thereofSection 11.1(a), the Certificate Insurer may remove the Master Servicer; provided, however, that if such occurrence of an Event of Default is the result of circumstances beyond the Master Servicer's control, the Master Servicer can demonstrate to shall not be removed, and provided further, that in the reasonable satisfaction event of any disagreement between the Seller and the Certificate Insurer, the decision of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer shall control.
(bc) The Certificate Insurer also may remove Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer upon so causing such a conflict being of a type and nature carried on by the occurrence Master Servicer at the date of any this Agreement. Any such determination permitting the resignation of the following events:Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Seller, the Transferor, the Trustee and the Certificate Insurer.
(id) upon No removal or resignation of the making Master Servicer shall become effective until the Trustee or a successor Master Servicer acceptable to the Certificate Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of any Insured Paymentthe Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor Master Servicer or the Trustee 108 all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor Master Servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer; provided, however, that the Certificate Insurer Trustee shall have no right to remove not be liable for any acts, omissions or obligations of the Master Servicer under prior to such succession or for any breach by the Master Servicer of any of its representations and warranties contained in this clause Agreement or in any related document or agreement. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which (i) if has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans, (ii) has equity of not less than $15,000,000, as determined in accordance with generally accepted accounting principles, and (iii) must have demonstrated proficiency in the servicing of mortgage loans having similar characteristics (including credit characteristics) to the Mortgage Loans, (iv) and must be acceptable to the Certificate Insurer as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Master Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 10.8 and 10.15.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Master Servicing Fees as servicing compensation (including the servicing compensation received in the form of assumption fees, late payment charges or otherwise) as provided in Sections 10.8 and 10.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Access Financial Lending Corp)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, Trustee with the consent of the Certificate Insurer, or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta 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 Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Certificate Insurer; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(v) if on any Payment Date the Pool Rolling Three-Month Delinquency Rate exceeds 7%;
(vi) if on any Payment Date occurring in September of any year, commencing in September 1997, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 3% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any Payment Date of the first sixty Payment Dates after the Startup Day the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 8% of the Original Aggregate Loan Balance and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 12.5% of the Original Aggregate Loan Balance; 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; provided, however, that (x) prior to any removal of the Master Servicer by the Certificate Insurer pursuant to clauses (i), (ii) or (iii) of this Section 8.20(b), the Master Servicer shall first have been given by the Certificate Insurer and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Certificate Insurer to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Certificate Insurer that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Certificate Insurer) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1996-3)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Class A-8 and Class A-9 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in 93 107 good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Class A-8 and Class A-9 Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Class A-8 and Class A-9 Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer Control Party also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta Group II Total Available Funds Shortfall; provided, however, that the Class A-8 and Class A-9 Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateClass A-8 and Class A-9 Certificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Class A-8 and Class A-9 Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(a) if on any Payment Date of the first sixty Payment Dates after the Startup Day the aggregate Total Expected Losses for all prior Remittance Periods since the Startup Day exceed 7.0% of the Original Pool Balance and (b) if on any Payment Date thereafter the Total Expected Losses for all prior Remittance Periods since the Startup Day exceed 9.0% of the Original Pool Balance; provided, however, with respect to clauses (iv), (v), (vi) and (vii), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to 94 108 circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Class A-8 and Class A-9 Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Class A-8 and Class A-9 Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Class A-8 and Class A-9 Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Class A-8 and Class A-9 Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession. 95 109 (f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1997-3)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or, with the consent of the Certificate Insurer (Insurer, the Seller or the Owners pursuant to Section 6.11 hereofof Class A Certificates evidencing at least a majority in Percentage Interest of all Class A Certificates) may remove the Master Servicer upon the occurrence of any of the following events:events (each, an "Event of Default"):
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take cause corporate action to be taken by it for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, conservator, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an 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; or
(iviii) The Master Servicer shall fail to perform any one or more of its obligations hereunder (other than the its obligations contemplated by Subsection 8.20(ireferenced in clauses (vi) above, and (vii) below) and shall continue in default thereof for a period of sixty thirty (6030) days after notice the earlier to occur of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Trustee Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.1(c) which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such breach or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the Certificate Insurance Policy, or if the Certificate Insurer otherwise funds any shortfall with its own money, because the amounts available to the Trustee (other than from the Certificate Insurer) are insufficient to make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required Servicing Advance for a period of 30 days following the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required Delinquency Advance, to pay any Compensating Interest or to pay over any Monthly Remittance or other amounts required to be remitted by the Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month Delinquency Rate (including all foreclosures and REO Properties) exceeds 4.75% during the period November 1, 1996 through October 31, 1997, 5.50% during the period November 1, 1997 through October 31, 1998, 6.25% during the period November 1, 1998 through October 31, 1999, 7.25% during the period November 1, 1999 through October 31, 2000, 8.25% during the period November 1, 2000 through October 31, 2001, or 10.00% after November 1, 2001; or
(ix) If on any Payment Date occurring in November of any year, commencing in November 1997, the aggregate Pool Cumulative Net Realized Losses over the prior twelve month period exceed 0.75% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net Realized Losses for all prior Remittance Periods since the Startup Day exceed 3.25% of the Original Pool Principal Balance; provided, however, that (x) prior to any removal of the Master Servicer pursuant to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable 143 grace period granted by any such clause shall have expired prior to the time such occurrence shall have been remedied and (y) in the event of the refusal or inability of the Master Servicer to comply with its obligations described in clause (vii) above, such removal shall be effective (without the requirement of any action on the part of the Seller, the Transferor, the Certificate Insurer or of the Trustee) at 4 p.m. New York City time on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required amount described in clause (vii) above has not been received by the Trustee, unless the required amount described in clause (vii) above is paid by the Master Servicer prior to such time or the Certificate Insurer grants an extension of time for such payment. Upon the Trustee's obtaining actual knowledge that a required amount described in clause (vii) above has not been made by the Master Servicer's discovery , the Trustee shall so notify an Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in clauses (viii), (ix) or receipt (x) of notice thereofSection 11.1(a), the Certificate Insurer may remove the Master Servicer; provided, however, that if such occurrence of an Event of Default is the result of circumstances beyond the Master Servicer's control, the Master Servicer can demonstrate to shall not be removed, and provided further, that in the reasonable satisfaction event of any disagreement between the Seller and the Certificate Insurer, the decision of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer shall control.
(bc) The Certificate Insurer also may remove Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer upon so causing such a conflict being of a type and nature carried on by the occurrence Master Servicer at the date of any this Agreement. Any such determination permitting the resignation of the following events:Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Seller, the Transferor, the Trustee and the Certificate Insurer.
(id) upon No removal or resignation of the making Master Servicer shall become effective until the Trustee or a successor Master Servicer acceptable to the Certificate Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of any Insured Paymentthe Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor Master Servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor Master Servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer; provided, however, that the Certificate Insurer Trustee shall have no right to remove not be liable for any acts, omissions or obligations of the Master Servicer under prior to such succession or for any breach by the Master Servicer of any of its representations and warranties contained in this clause Agreement or in any related document or agreement. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which (i) if has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans, (ii) has equity of not less than $15,000,000, as determined in accordance with generally accepted accounting principles, and (iii) must have demonstrated proficiency in the servicing of mortgage loans having similar characteristics (including credit characteristics) to the Mortgage Loans, (iv) and must be acceptable to the Certificate Insurer as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Master Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 10.8 and 10.15.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Master Servicing Fees as servicing compensation (including the servicing compensation received in the form of assumption fees, late payment charges or otherwise) as provided in Sections 10.8 and 10.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Access Financial Lending Corp)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Class A-6 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an 112 126 adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Class A-6 Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Class A-6 Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer Control Party also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta Group II Total Available Funds Shortfall; provided, however, that the Class A-6 Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateClass A-6 Certificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or 113 127 under the Insurance Agreement, which failure materially and adversely affects the interests of the Class A-6 Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(v) if on any Payment Date the Pool Rolling Six-Month Delinquency Rate for the Mortgage Loans exceeds 10%;
(vi) if on any Payment Date occurring in July of any year, commencing in July 1997, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 3% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any Payment Date of the first sixty Payment Dates after the Startup Day the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 8% of the Original Aggregate Loan Balance and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 12.5% of the Original Aggregate Loan Balance; provided, however, with respect to clauses (iv), (v), (vi) and (vii), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part 114 128 of the Class A-6 Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Class A-6 Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Class A-6 Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Class A-6 Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment 115 129 of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Class A-6 Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1997-2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master 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 Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by 87 94 the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance, any Special Advance or to pay any Compensating Interest; or
(v) the occurrence of a Servicer Termination Loss Trigger or of a Servicer Termination Delinquency Trigger, as such terms are defined in the Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares, or any finding or ruling by a court of competent jurisdiction, that the Insurance Agreement or this Agreement is not valid and binding on the Sponsor or the Master Servicer. provided, however, with respect to clause (iv), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of 88 95 such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or Special Advance or to pay any Compensating Interest (as described in clause (iv)) or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance or Special Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or Special Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Agreement. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Agreement, including, without limitation, making Delinquency Advances, Servicing Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1999-3)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the 83 91 Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer Control Party also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta Deficiency Amount; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(v) the occurrence of a Servicer Termination Loss Trigger, as such terms are defined in the Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares, or any finding or ruling by a court of competent jurisdiction, that the Insurance Agreement or this Agreement is not valid and binding on the Sponsor or the Master Servicer; provided, however, with respect to clause (iv), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-3)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or, with the consent of the Certificate Insurer (Insurer, the Seller or the Owners pursuant to Section 6.11 hereofof Class A Certificates evidencing at least a majority in Percentage Interest of all Class A Certificates) may remove the Master Servicer upon the occurrence of any of the following events:events (each, an "Event of Default"):
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment 132 for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take cause corporate action to be taken by it for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, conservator, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an 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; or
(iviii) The Master Servicer shall fail to perform any one or more of its obligations hereunder (other than the its obligations contemplated by Subsection 8.20(ireferenced in clauses (vi) above, and (vii) below) and shall continue in default thereof for a period of sixty thirty (6030) days after notice the earlier to occur of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Trustee Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.1(c) which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such breach or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the Certificate Insurance Policy, or if the Certificate 133 Insurer otherwise funds any shortfall with its own money, because the amounts available to the Trustee (other than from the Certificate Insurer) are insufficient to make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required Servicing Advance for a period of 30 days following the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required Delinquency Advance, to pay any Compensating Interest or to pay over any Monthly Remittance or other amounts required to be remitted by the Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month Delinquency Rate (including all foreclosures and REO Properties) exceeds 4.75% during the period May 1, 1997 through April 30, 1998, 5.50% during the period May 1, 1998 through April 30, 1999, 6.25% during the period May 1, 1999 through April 30, 2000, 7.25% during the period May 1, 2000 through April 30, 2001, 8.25% during the period May 1, 2001 through April 30, 2002 or 10.00% after May 1, 2002; or
(ix) If on any Payment Date occurring in May of any year, commencing in May 1998, the aggregate Pool Cumulative Net Realized Losses over the prior twelve month period exceed 0.75% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net Realized Losses for all prior Remittance Periods since the Startup Day exceed 3.25% of the Original Pool Principal Balance; provided, however, that (x) prior to any removal of the Master Servicer pursuant to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable grace period granted by any such clause shall have expired prior to the time such occurrence shall have been remedied and (y) in the event of the refusal or inability of the Master Servicer to comply with its obligations described in clause (vii) above, such removal shall be effective (without the requirement of any action on the part of the Seller, the Transferor, the Certificate Insurer or of the Trustee) at 4 p.m. New York City time on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required amount described in clause (vii) above has not been received by the Trustee, unless the required amount 134 described in clause (vii) above is paid by the Master Servicer prior to such time or the Certificate Insurer grants an extension of time for such payment. Upon the Trustee's obtaining actual knowledge that a required amount described in clause (vii) above has not been made by the Master Servicer's discovery , the Trustee shall so notify an Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in clauses (viii), (ix) or receipt (x) of notice thereofSection 11.1(a), the Certificate Insurer may remove the Master Servicer; provided, however, that if such occurrence of an Event of Default is the result of circumstances beyond the Master Servicer's control, the Master Servicer can demonstrate to shall not be removed, and provided further, that in the reasonable satisfaction event of any disagreement between the Seller and the Certificate Insurer, the decision of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer shall control.
(bc) The Certificate Insurer also may remove Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer upon so causing such a conflict being of a type and nature carried on by the occurrence Master Servicer at the date of any this Agreement. Any such determination permitting the resignation of the following events:Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Seller, the Transferor, the Trustee and the Certificate Insurer.
(id) upon No removal or resignation of the making Master Servicer shall become effective until the Trustee or a successor Master Servicer acceptable to the Certificate Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of any Insured Paymentthe Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor Master Servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor Master Servicer as described below, and (y) pending the appointment of a successor 135 Master Servicer as a result of soliciting such bids, shall serve as Master Servicer; provided, however, that the Certificate Insurer Trustee shall have no right to remove not be liable for any acts, omissions or obligations of the Master Servicer under prior to such succession or for any breach by the Master Servicer of any of its representations and warranties contained in this clause Agreement or in any related document or agreement. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which (i) if has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans, (ii) has equity of not less than $15,000,000, as determined in accordance with generally accepted accounting principles, and (iii) must have demonstrated proficiency in the servicing of mortgage loans having similar characteristics (including credit characteristics) to the Mortgage Loans, (iv) and must be acceptable to the Certificate Insurer as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Master Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 10.8 and 10.15.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Master Servicing Fees as servicing compensation (including the servicing compensation received in the form of assumption fees, late payment charges or otherwise) as provided in Sections 10.8 and 10.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Access Financial Lending Corp)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Class A-8 and Class A-9 Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Class A-8 and Class A-9 Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Class A-8 and Class A-9 Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer Control Party also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Paymenta Group II Deficiency Amount; provided, however, that the Class A-8 and Class A-9 Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateClass A-8 and Class A-9 Certificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Class A-8 and Class A-9 Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or 98 110 (v) the occurrence of a Servicer Termination Delinquency Rate Trigger or a Servicer Termination Loss Trigger, as such terms are defined in the Insurance Agreement; or
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Conduit Services Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days (except that there shall be no grace period for a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a)) after the earlier of (a) actual knowledge of an officer of the Master Servicer or (b) receipt of notice by from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19.
(b) The Certificate Insurer also may instruct the Trustee to remove the Master Servicer upon (a) the occurrence of failure by the Master Servicer to make any required Servicing Advance when due or (b) the failure of the following events:
Master Servicer to make any required P&I Advance or to pay any Compensating Interest when due. The Certificate Insurer may also remove the Master Servicer as follows: (i) upon the making failure of the Master Servicer to satisfy the Servicer Termination Test, (ii) Realized Losses over any one twelve-month period exceed 1.50% of the Original Aggregate Loan Balance of the Mortgage Loans or (iii) the 90 + Delinquency Percentage (Rolling Three Month) for the Mortgage Loans exceeds 10.00% of the Original Aggregate Loan Balance of the Mortgage Loans.
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any Insured Paymentmaterially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of any state of the United States or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to
obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Certificate Insurer shall have no right to remove the Trustee acts as successor Master Servicer under this clause (i) if then the Seller agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer can demonstrate a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the fee described in the preceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller.
(j) ln the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iA) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiB) admit in writing its inability to pay its debts generally as they become due, (iiiC) make a general assignment for the benefit of creditors, (ivD) be adjudicated a bankrupt or insolvent, (vE) 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 (viF) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable 84 91 satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Certificate Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance, any Special Advance or to pay any Compensating Interest; or
(v) the occurrence of a Servicer Termination Loss Trigger or of a Servicer Termination Delinquency Trigger, as such terms are defined in the Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares, or any finding or ruling by a court of competent jurisdiction, that the Insurance Agreement or this Agreement is not valid and binding on the Sponsor or the Master Servicer; provided, however, with respect to clause (iv), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first 85 92 have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or Special Advance or to pay any Compensating Interest (as described in clause (iv)) or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Certificate Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance or Special Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or Special Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Agreement. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Agreement, including, without limitation, making Delinquency Advances, Servicing Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the compensation set forth in clause (g) above. Within thirty (30) days after any such public announcement, the Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest satisfactory bid. The Trustee shall deduct from any sum received by the Trustee from the successor to the Master Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder. After such deductions, the remainder of such sum shall be paid by the Trustee to the Master Servicer at the time of such sale, transfer and assignment to the Master Servicer's successor.
(i) The Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Master Servicer agrees to cooperate with the Trustee and any successor Master Servicer in effecting the termination of the Master Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Trustee or such successor Master Servicer, as applicable, all documents and records reasonably requested by it to enable it to assume the Master Servicer's functions hereunder and shall promptly also transfer to the Trustee 87 94 or such successor Master Servicer, as applicable, all amounts which then have been or should have been deposited in the Principal and Interest Account by the Master Servicer or which are thereafter received with respect to the Mortgage Loans. Neither the Trustee nor any other successor Master Servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Master Servicer to deliver, or any delay in delivering, cash, documents or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Master Servicer or (iii) any breaches of a predecessor Master Servicer.
(j) The Trustee or any other successor Master Servicer, upon assuming the duties of Master Servicer hereunder, shall immediately make all Delinquency Advances and pay all Compensating Interest which the Master Servicer has theretofore failed to remit with respect to the Mortgage Loans; provided, however, that if the Trustee is acting as successor Master Servicer, the Trustee shall only be required to make Delinquency Advances (including the Delinquency Advances required to be made by the predecessor Master Servicer but not so deposited) if, in the Trustee's reasonable good faith judgment, such Delinquency Advances will ultimately be recoverable from the related Mortgage Loans.
(k) The Master Servicer which is being removed or is resigning shall give notice to the Mortgagors and to each Rating Agency of the transfer of the servicing to the successor.
(l) The Trustee shall give notice to the Certificate Insurer, each Rating Agency and to the Owners of the occurrence of any event specified in Section 8.20(a) of which the Trustee has knowledge.
(m) Notwithstanding anything herein to the contrary, upon termination of the Master Servicer hereunder, any liabilities of the Master Servicer which accrued prior to such termination shall survive such termination.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 2000 2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five ninety (7590) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days (except that there shall be no grace period for a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a)) after the earlier of (a) actual knowledge of an officer of the Master Servicer or (b) receipt of notice by from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) There shall have occurred, and the Certificate Insurer shall have notified the Master Servicer and the Trustee of, an event of default by the Master Servicer under the Insurance Agreement, provided (except in the case of a default by the Master Servicer under Section 5.01(f) of the Insurance Agreement) that no Certificate Insurer Default exists; or
(vi) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19.
(b) The Certificate Insurer also may instruct the Trustee to remove the Master Servicer upon (a) the occurrence failure by the Master Servicer to make any required Servicing Advance when due or (b) the failure of the Master Servicer to make any required P&I Advance or to pay any Compensating Interest when due which failure remains unremedied until 12:00 p.m. (noon) New York time on the next succeeding Business Day.
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the following events:Certificate Insurer from time to time.
(id) upon the making of If any Insured Payment; providedevent described in sections (a) and (b) above occurs and is continuing, however, that the Certificate Insurer shall have no right notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to remove terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of any state of the United States or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this clause Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer at no expense to the Trustee or to the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a Successor Master Servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer can demonstrate to hereunder in the reasonable satisfaction assumption of all or any part of the Certificateresponsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days or in the case of a delay in making a required payment to the Trustee under Section 8.08(d)(ii)(a), one (1) Business Day) after the earlier of (a) actual knowledge of an officer of the Master Servicer or (b) receipt of notice by from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19.
(b) The Certificate Insurer also may instruct the Trustee to remove the Master Servicer upon (a) the failure by the Master Servicer to make any required Servicing Advance when due or (b) the failure of the Master Servicer to make any required P&I Advance or to pay any Compensating Interest when due.
(c) If any event described in subsection (b) above occurs and is continuing, during the thirty (30) day period following receipt of notice, the Trustee, the Owners of the Class R Certificates and the Certificate Insurer shall cooperate with each other to determine if the occurrence of any such event is more likely than not the result of the acts or omissions of the Master Servicer or more likely than not the result of events beyond the control of the Master Servicer. If the Trustee, the Owners of the Class R Certificates and the Certificate Insurer conclude that the event is the result of the latter, the Master Servicer shall not be terminated. If the Trustee, the Owners of the Class R Certificates and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer, provided that the Trustee shall have until the 30th day following events:
(i) upon the making date of any Insured Paymentreceipt of notice of the event to become the successor Master Servicer or to appoint a successor Master Servicer pursuant to this Section. If the Trustee, the Owners of the Class R Certificates 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 Master Servicer, the Trustee shall be relieved of its obligation to act as successor Master Servicer or to appoint a successor, which shall be the exclusive obligation of the Certificate Insurer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement. During the 30 day period following receipt of such notice by the Owners of the Class R Certificates, such Owners 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 Master Servicer or more likely than not the result of events beyond the control of the Master Servicer. If the Owners of the Class R Certificates and the Certificate Insurer conclude that the event is the result of the latter, the Master Servicer shall not be terminated. If the Owners of the Class R Certificates and the Certificate Insurer conclude that the event is the result of the former, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer, provided that the Trustee shall have no right until the 30th day following the date of receipt of notice of the event to remove become the successor Master Servicer or to appoint a successor Master Servicer pursuant to this Section. If the Owners of the Class R Certificates and the Certificate Insurer cannot agree as to the cause of the event, the decision of the Certificate Insurer shall control.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of any state of the United States or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee an agreement, in form and substance reasonably satisfactory to the Trustee, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this clause Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Seller agrees to pay to the reasonable satisfaction Trustee at such time that the Trustee becomes such successor Master Servicer a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the fee described in the preceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller.
(j) ln the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the Certificateaggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iA) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiB) admit in writing its inability to pay its debts generally as they become due, (iiiC) make a general assignment for the benefit of creditors, (ivD) be adjudicated a bankrupt or insolvent, (vE) 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 (viF) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the 91 Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days after (or with respect to a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a) which failure continues unremedied for two Business Days following the receipt of written notice by an Authorized Officer of such servicer from the Trustee or from any Owner) after the earlier of (A) actual knowledge of an officer of the Master Servicer or (B) receipt of notice from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19; or
(vi) The breach by the Seller, as long as the Seller is an affiliate of the Master Servicer, of the covenant to (A) substitute a Qualified Replacement Mortgage Loan and deliver the Substitution Adjustment to the Master Servicer for deposit in the Collection Account or (B) purchase a Mortgage Loan, pursuant to Section 3.04(b).
(b) The Certificate Insurer may instruct the Trustee to remove the Master Servicer upon (i) the failure by the Master Servicer to make any required Servicing Advance when due or (ii) the failure of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest when due. The Certificate Insurer may also may remove the Master Servicer upon the occurrence failure of the Master Servicer to satisfy the Servicer Termination Test or upon any breach of the Master Servicer's obligations under Section 5.08(d).
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the following events:Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of the United States, any state thereof or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties imposed on it pursuant to this Agreement, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an independent opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer (such successor Master Servicer to be reasonably approved by the Certificate Insurer) shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) upon Upon removal or resignation of the making Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any Insured Paymentsuccessor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Certificate Insurer shall have no right to remove Trustee acts as successor Master Servicer then the Master Servicer under this clause (i) if agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer can demonstrate a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the fee described in the preceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller.
(j) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Inc Asset Backed Cert Series 1999 2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or the Owners, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may direct the Trustee to remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iviii) The Master Servicer shall fail to perform in any material respect any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty thirty (6030) days after (or with respect to a failure by the Master Servicer to remit the Monthly Remittance Amount to the Trustee as provided in Section 8.08(d)(ii)(a)) which failure continues unremedied for two Business Days following the receipt of written notice by an Authorized Officer of such servicer from the Trustee or from any Owner after the earlier of (a) actual knowledge of an officer of the Master Servicer or (b) receipt of notice from the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.02 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty sixty (3060) days after the earlier of the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The merger, consolidation or other combination of the Master Servicer with or into any other entity, unless such merger, consolidation or other combination is in accordance with Section 8.19; or
(vi) The breach by the Seller, as long as the Seller is an affiliate of the Master Servicer, of the covenant to (I) substitute a Qualified Replacement Mortgage and deliver the Substitution Adjustment to the Master Servicer for deposit in the Collection Account or (II) purchase a Mortgage Loan, pursuant to Section 3.04(b).
(b) The Certificate Insurer may instruct the Trustee to remove the Master Servicer upon (i) the failure by the Master Servicer to make any required Servicing Advance when due or (ii) the failure of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest when due. The Certificate Insurer may also may remove the Master Servicer upon the occurrence failure of the Master Servicer to satisfy the Servicer Termination Test.
(c) If any event described in subsection (b) above occurs and is continuing, the Certificate Insurer may terminate the Master Servicer in accordance with this Section and the Trustee shall act as successor Master Servicer. The Certificate Insurer agrees to use its best efforts to inform the Trustee of any materially adverse information regarding the Master Servicer's servicing activities that comes to the attention of the following events:Certificate Insurer from time to time.
(d) If any event described in sections (a) and (b) above occurs and is continuing, the Certificate Insurer shall notify the Owners of the Class R Certificates in writing if the Certificate Insurer intends to terminate the Master Servicer in its capacity as Master Servicer under this Agreement.
(e) The Master Servicer may assign its rights and delegate its duties and obligations under this Agreement in connection with the sale or transfer of a substantial portion of its mortgage servicing or asset management portfolio, provided that: (i) the purchaser or transferee accepting such assignment and delegation (A) shall be satisfactory to the Trustee and the Certificate Insurer, (B) shall be (I) an established mortgage finance institution, bank or mortgage servicing institution, organized and doing business under the laws of the United States, any state thereof or the District of Columbia, authorized under such laws to perform the duties of a servicer of mortgage loans or (II) a Person resulting from a merger, consolidation or succession that is permitted under Section 8.19, and (C) shall execute and deliver to the Trustee and the Certificate Insurer an agreement, in form and substance reasonably satisfactory to the Trustee and the Certificate Insurer, which contains an assumption by such Person of the due and punctual performance and observance of each covenant and condition to be performed or observed by the Master Servicer under this Agreement from and after the date of such agreement; (ii) as evidenced by a letter from each Rating Agency delivered to the Trustee and the Certificate Insurer, each Rating Agency's rating or ratings of the Certificates in effect immediately prior to such assignment and delegation will not be qualified, downgraded or withdrawn as a result of such assignment and delegation; (iii) the Master Servicer shall not be released from its obligations under this Agreement that arose prior to the effective date of such assignment and delegation under this Section 8.20(e); and (iv) the rate at which the Servicing Fee (or any component thereof) is calculated shall not exceed the rate in effect prior to such assignment and delegation. Upon acceptance of such assignment and delegation, the purchaser or transferee shall be the successor Master Servicer hereunder. The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(f) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor Master Servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(g) Upon removal or resignation of the Master Servicer, the Master Servicer at its own expense also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(h) Any collections then being held by the Master Servicer prior to its removal and any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the successor Master Servicer.
(i) upon Upon removal or resignation of the making Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans and having equity of not less than $1,500,000 (or such lower level as may be acceptable to the Certificate Insurer), as determined in accordance with generally accepted accounting principles and acceptable to the Certificate Insurer and the Owners of the Class R Certificates (provided that if the Certificate Insurer and such Owners cannot agree within a reasonable period of time as to the acceptability of such successor Master Servicer, the decision of the Certificate Insurer shall control) as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any Insured Paymentsuccessor Master Servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fee, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15; provided, however, that if the Certificate Insurer shall have no right to remove the Trustee acts as successor Master Servicer under this clause (i) if then the Seller agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer can demonstrate a set-up fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the fee described in the preceding sentence is paid by the Seller, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Seller.
(j) ln the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.08 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1997-2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer Trustee (or the Owners pursuant to Section 6.11 hereof) ), each with the consent of the Certificate Insurer, or the Certificate Insurer may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five three Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or 101 any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making failure by the Master Servicer to make any required Servicing Advance which failure continues for thirty (30) days or more after written notice from the Certificate Insurer; or
(ii) the failure by the Master Servicer to perform any one or more of its material obligations hereunder, which failure continues for sixty (60) or more days after written notice from Certificate Insurer;
(iii) failure on the part of the Master Servicer to make a payment or deposit required under this Agreement within three Business Days after the date such payment or deposit is required to be made;
(iv) if on any Insured PaymentPayment Date the net cumulative Realized Losses since the Closing Date equal or exceed 5% of the aggregate Principal Balance of the Mortgage Loans;
(v) if the cumulative Realized Losses over any twelve-month period exceed 2% of the average aggregate Principal Balance of the Mortgage Loans as of the close of Business on the last day of each of the twelve preceding Remittance Periods; or
(vi) if the three month moving average of the 90-day delinquency rate exceeds 7%; provided, however, that prior to any removal of the Master Servicer by the Certificate Insurer shall have no right pursuant to remove clauses (i) or (ii) of this Section 8.20(b), the Master Servicer under this shall first have been given by the Certificate Insurer and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i) or (ii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Certificate Insurer to remedy, such event or events within 30 days with respect to clause (i) (60 days with respect to clause (ii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateCertificate Insurer that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Certificate Insurer).
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it except by mutual written consent of the Sponsor, the Master Servicer, the Certificate Insurer and the Trustee or upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $5,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Certificate Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Originator agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Fund. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Originator, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Originator.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Revolving Home Equity Loan Trust 1996-A)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Group I Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master 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 Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Group I Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the Certificate
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-1)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, Trustee with the consent of the Certificate Insurer, or the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer and terminate the rights and obligations of the Master Servicer under this Agreement by written notice to the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to remit any amounts to be deposited in the Distribution Account hereunder or deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five three Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any OwnerOwners of Certificates representing 25% or more of the Percentage Interests of each Class of Class A Certificates.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an 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; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i8.22(i) aboveabove which materially and adversely affects the interests of the Owners or the Certificate Insurer, and shall continue in default thereof for a period of sixty thirty (6030) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Certificate Insurer that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer.
(b) The In addition, the Certificate Insurer also may remove the Master Servicer upon the occurrence of any either of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the Certificate
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Accredited Home Lenders Inc)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master 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 Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency 107 112 law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party.
(b) The Certificate Insurer also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that the Certificate Insurer shall have no right to remove the Master Servicer under this clause (i) if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateInsurer that such event was due to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more of its obligations hereunder or under the Insurance Agreement, which failure materially and adversely affects the interests of the Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required Delinquency Advance, any Special Advance or to pay any Compensating Interest; or
(v) the occurrence of a Servicer Termination Delinquency Rate Trigger or a Servicer Termination Loss Trigger, as such terms are defined in the Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares, or any finding or ruling by a court of competent jurisdiction, that the Insurance Agreement or this Agreement is not valid and binding on the Sponsor or the Master Servicer; provided, however, with respect to clause (iv), if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that any such event was due to circumstances beyond the control of the Master Servicer, such event shall not be considered an event of termination of the Master Servicer; 108 113 provided, however, that (x) prior to any removal of the Master Servicer by the Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Control Party and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i), (ii) or (iii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Control Party to remedy, such event or events within 30 days (60 days with respect to clause (iii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Control Party) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or Special Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Insurer or of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee or the Insurer notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance or Special Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or Special Advance or payment of Compensating Interest has not been made by the Master Servicer, the Trustee shall so notify in writing an Authorized Officer of the Master Servicer and the Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Master Servicer so causing such a conflict being of a type and nature carried on by the Master Servicer at the date of this Agreement. Any such determination permitting the resignation of the Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Trustee and the Insurer.
(d) No removal or resignation of the Master Servicer shall become effective until the Trustee or a successor servicer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section. If no successor servicer is available, the Trustee shall act as successor servicer and perform all of the obligations of this Section, including, without limitation, making Delinquency Advances and paying Compensating Interest; provided, however, that the Trustee will not be obligated to act as successor servicer if it is legally unable to perform its duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as 109 114 Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which has shareholders' equity of not less than $10,000,000, as determined in accordance with generally accepted accounting principles, and acceptable to the Insurer as the successor to the Master Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor servicer (including, without limitation, the Trustee) so appointed shall be the aggregate Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.15; provided, however, that if the Trustee acts as successor Master Servicer then the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes such successor Master Servicer a fee of twenty-five dollars ($25.00) for each Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated to serve as successor Master Servicer whether or not the $25.00 fee described in the preceding sentence is paid by the Sponsor, but shall in any event be entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the full amount of the aggregate Servicing Fees as servicing compensation, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 8.8 and 8.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1998-2)
Removal of Master Servicer; Resignation of Master Servicer. (a) The Trustee, with the consent of the Certificate Insurer Trustee (or the Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take corporate action for the purpose of effecting any of the foregoing;; 106
(iii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer in good faith, the same shall (A) result in the entry of an order for relief or any such adjudication or appointment or (B) continue undismissed or pending and unstayed for any period of seventy-five (75) consecutive days; or
(iv) The Master Servicer shall fail to perform any one or more of its obligations hereunder other than the obligations contemplated by Subsection 8.20(i) above, and shall continue in default thereof for a period of sixty (60) days after notice by the Trustee or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Trustee that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyTrustee; or
(v) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the Master Servicer's discovery or receipt of notice thereof; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party Trustee that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyTrustee.
(b) The Certificate Insurer Trustee also may remove the Master Servicer upon the occurrence of any of the following events:
(i) upon the making failure by the Master Servicer to make any required Servicing Advance; or
(ii) the failure by the Master Servicer to perform any one or more of its obligations hereunder, which failure materially and adversely affects the interests of the Trustee; or 107
(iii) the failure by the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest; or
(iv) if on any Payment Date the Pool Rolling Three-Month Delinquency Rate exceeds 7%;
(v) if on any Payment Date occurring in September of any Insured Paymentyear, commencing in September 1997, the aggregate Pool Cumulative Realized Losses over the prior twelve month period exceed 3% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(a) if on any Payment Date of the first sixty Payment Dates after the Startup Day the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 8% of the Original Aggregate Loan Balance and (b) if on any Payment Date thereafter the aggregate Pool Cumulative Realized Losses for all prior Remittance Periods since the Startup Day exceed 12.5% of the Original Aggregate Loan Balance; provided, however, with respect to clauses (iv), (v) and (vi), if the Servicer can demonstrate to the reasonable satisfaction of the Trustee 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; provided, however, that the Certificate Insurer shall have no right (x) prior to remove any removal of the Master Servicer under this clause by the Trustee pursuant to clauses (i) or (ii) of this Section 8.20(b), the Master Servicer shall first have been given by the Trustee and by registered or certified mail, notice of the occurrence of one or more of the events set forth in clauses (i) or (ii) above and the Master Servicer shall not have remedied, or shall not have taken actions satisfactory to the Trustee to remedy, such event or events within 30 days (60 days with respect to clause (ii)) after the Master Servicer's receipt of such notice (provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the CertificateTrustee that it is diligently pursuing remedial action, then the cure period in each case may be extended with the written approval of the Trustee) and (y) in the event of the refusal or inability of the Master Servicer to make any required Delinquency Advance or to pay any Compensating Interest or Monthly Remittance, such removal shall be effective (without the requirement of any action on the part of the Trustee) at 4 p.m. on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required Delinquency Advance has not been received by the Trustee. Upon the Trustee's determination that a required Delinquency Advance or payment of Compensating Interest has not been made by the 108
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Advanta Mortgage Loan Trust 1997-1)
Removal of Master Servicer; Resignation of Master Servicer. (a) The TrusteeCertificate Insurer (or, with the consent of the Certificate Insurer (Insurer, the Seller or the Owners pursuant to Section 6.11 hereofof Class A Certificates evidencing at least a majority in Percentage Interest of all Class A Certificates) may remove the Master Servicer upon the occurrence of any of the following events:events (each, an "Event of Default"):
(i) The Master Servicer shall fail to deliver to the Trustee any proceeds or required payment, which failure continues unremedied for five Business Days following written notice to an Authorized Officer of the Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (iI) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or similar entity with respect to itself or its property, (iiII) admit in writing its inability to pay its debts generally as they become due, (iiiIII) make a general assignment for the benefit of creditors, (ivIV) be adjudicated a bankrupt or insolvent, (vV) 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 (viVI) take cause corporate action to be taken by it for the purpose of effecting any of the foregoing;; or
(iiiii) If without the application, approval or consent of the Master Servicer, a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking in respect of the Master Servicer an order for relief or an adjudication in bankruptcy, reorganization, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, conservator, liquidator or custodian or similar entity with respect to the Master Servicer or of all or any substantial part of its assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by the Master Servicer 130 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; or
(iviii) The Master Servicer shall fail to perform any one or more of its obligations hereunder (other than the its obligations contemplated by Subsection 8.20(ireferenced in clauses (vi) above, and (vii) below) and shall continue in default thereof for a period of sixty thirty (6030) days after notice the earlier to occur of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Trustee Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of said failure; provided, however, that if the Master Servicer can demonstrate to the reasonable satisfaction of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control Party; or
(viv) The Master Servicer shall fail to cure any breach of any of its representations and warranties set forth in Section 3.2 3.1(c) which materially and adversely affects the interests of the Owners or the Certificate Insurer for a period of thirty (30) days after the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such breach or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such breach; or
(v) If the Certificate Insurer pays out any money under the Certificate Insurance Policy, or if the Certificate Insurer otherwise funds any shortfall with its own money, because the amounts available to the Trustee (other than from the Certificate Insurer) are insufficient to make required distributions on the Class A Certificates; or
(vi) The failure by the Master Servicer to make any required Servicing Advance for a period of 30 days following the earlier of (x) the date on which an Authorized Officer of the Master Servicer knows or reasonably should know of such failure or (y) receipt by the Master Servicer of a written notice from the Trustee, any Owner, the Seller, the Transferor or the Certificate Insurer of such failure; or
(vii) The failure by the Master Servicer to make any required Delinquency Advance, to pay any Compensating Interest or to pay over any Monthly Remittance or other amounts required to be remitted by the Master Servicer pursuant to this Agreement; or
(viii) If on any Payment Date the Pool Rolling Three Month Delinquency Rate (including all foreclosures and REO Properties) exceeds 4.75% during the period February 1, 1997 through January 31, 1998, 5.50% during the period February 1, 1998 through January 31, 1999, 6.25% during the period 131 February 1, 1999 through January 31, 2000, 7.25% during the period February 1, 2000 through January 31, 2001, 8.25% during the period February 1, 2001 through January 31, 2002, or 10.00% after February 1, 2002; or
(ix) If on any Payment Date occurring in February of any year, commencing in February 1998, the aggregate Pool Cumulative Net Realized Losses over the prior twelve month period exceed 0.75% of the average Pool Principal Balance as of the close of business on the last day of each of the twelve preceding Remittance Periods; or
(x) If on any Payment Date the aggregate Pool Cumulative Net Realized Losses for all prior Remittance Periods since the Startup Day exceed 3.25% of the Original Pool Principal Balance; provided, however, that (x) prior to any removal of the Master Servicer pursuant to clauses (ii) through (iv) and (vi) of this Section 11.1(a), any applicable grace period granted by any such clause shall have expired prior to the time such occurrence shall have been remedied and (y) in the event of the refusal or inability of the Master Servicer to comply with its obligations described in clause (vii) above, such removal shall be effective (without the requirement of any action on the part of the Seller, the Transferor, the Certificate Insurer or of the Trustee) at 4 p.m. New York City time on the second Business Day following the day on which the Trustee notifies an Authorized Officer of the Master Servicer that a required amount described in clause (vii) above has not been received by the Trustee, unless the required amount described in clause (vii) above is paid by the Master Servicer prior to such time or the Certificate Insurer grants an extension of time for such payment. Upon the Trustee's obtaining actual knowledge that a required amount described in clause (vii) above has not been made by the Master Servicer's discovery , the Trustee shall so notify an Authorized Officer of the Master Servicer, and the Certificate Insurer, as soon as is reasonably practical.
(b) Upon the occurrence of an Event of Default as described in clauses (viii), (ix) or receipt (x) of notice thereofSection 11.1(a), the Certificate Insurer may remove the Master Servicer; provided, however, that if such occurrence of an Event of Default is the result of circumstances beyond the Master Servicer's control, the Master Servicer can demonstrate to shall not be removed, and provided further, that in the reasonable satisfaction event of any disagreement between the Seller and the Certificate Insurer, the decision of the Control Party that it is diligently pursuing remedial action, then the cure period may be extended with the written approval of the Control PartyCertificate Insurer shall control.
(bc) The Certificate Insurer also may remove Master Servicer shall not resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the 132 other activities of the Master Servicer upon so causing such a conflict being of a type and nature carried on by the occurrence Master Servicer at the date of any this Agreement. Any such determination permitting the resignation of the following events:Master Servicer shall be evidenced by an opinion of counsel to such effect which shall be delivered to the Seller, the Transferor, the Trustee and the Certificate Insurer.
(id) upon No removal or resignation of the making Master Servicer shall become effective until the Trustee or a successor Master Servicer acceptable to the Certificate Insurer shall have assumed the Master Servicer's responsibilities and obligations in accordance with this Section.
(e) Upon removal or resignation of any Insured Paymentthe Master Servicer, the Master Servicer also shall promptly deliver or cause to be delivered to a successor Master Servicer or the Trustee all the books and records (including, without limitation, records kept in electronic form) that the Master Servicer has maintained for the Mortgage Loans, including all tax bills, assessment notices, insurance premium notices and all other documents as well as all original documents then in the Master Servicer's possession.
(f) Any collections received by the Master Servicer after removal or resignation shall be endorsed by it to the Trustee and remitted directly and immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee (x) may solicit bids for a successor Master Servicer as described below, and (y) pending the appointment of a successor Master Servicer as a result of soliciting such bids, shall serve as Master Servicer; provided, however, that the Certificate Insurer Trustee shall have no right to remove not be liable for any acts, omissions or obligations of the Master Servicer under prior to such succession or for any breach by the Master Servicer of any of its representations and warranties contained in this clause Agreement or in any related document or agreement. The Trustee shall, if it is unable to obtain a qualifying bid and is prevented by law from acting as Master Servicer, appoint, or petition a court of competent jurisdiction to appoint, any housing and home finance institution, bank or mortgage servicing institution which (i) if has been designated as an approved seller-servicer by FNMA or FHLMC for first and second mortgage loans, (ii) has equity of not less than $15,000,000, as determined in accordance with generally accepted accounting principles, and (iii) must have demonstrated proficiency in the servicing of mortgage loans having similar characteristics (including credit characteristics) to the Mortgage Loans, (iv) and must be acceptable to the Certificate Insurer as the successor to the Master Servicer can demonstrate hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Master Servicer hereunder. The compensation of any successor Master Servicer (including, without limitation, the Trustee) so appointed shall be 133 the aggregate Master Servicing Fees, together with the other servicing compensation in the form of assumption fees, late payment charges or otherwise as provided in Sections 10.8 and 10.15.
(h) In the event the Trustee solicits bids as provided above, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above. Such public announcement shall specify that the successor Master Servicer shall be entitled to the reasonable satisfaction full amount of the Certificateaggregate Master Servicing Fees as servicing compensation (including the servicing compensation received in the form of assumption fees, late payment charges or otherwise) as provided in Sections 10.8 and 10.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Access Financial Lending Corp)
