Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement: (i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure; (ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; (iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or (iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement. (b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class. (c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon. (d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 2 contracts
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2021-A), Servicing Supplement (Mercedes-Benz Auto Lease Trust 2021-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee Subservicer for payment to Noteholders any proceeds or payment payments received from an Obligor or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 1:00 p.m., Chicago time, on the second successive Business Days after Day following such failure; provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Subservicer, upon receiving actual knowledge of such failure;, shall give the Servicer and the Trustee prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Subservicer to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 1:00 p.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteChicago time, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicerfollowing Business Day; provided, however, that if the occurrence Trustee has actual knowledge that the Servicer has not delivered the Monthly Servicer's Report by 1:00 p.m., Chicago time, on a Determination Date, the Trustee shall give the Servicer written, telecopied or telephonic notice of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolsuch failure. Notwithstanding the foregoing, a delay in or any failure of performance referred by the Trustee to under clause (i), (ii) or (iii) for a period of 120 days will deliver such notice to the Servicer shall not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon prevent the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default; or
(iii) any failure by the Servicer to remit any Purchase Price received by it to the Subservicer that continues unremedied until 4:00 p.m., Chicago time, the following Business Day; provided, however, that if the Servicer has not remitted any Purchase Price received by it to the Subservicer by 2:00 p.m., Chicago time, on the Determination Date and the Trustee has received written notification from the Subservicer by way of the Monthly Servicer's Report or otherwise that such Purchase Price has not been paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any actions to be taken failure by the 2021-A Exchange Noteholder thereunder Trustee to deliver such notice to the Servicer shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after not prevent the occurrence of an Exchange Note a Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.or
Appears in 2 contracts
Samples: Servicing Agreement (Trendwest Resorts Inc), Servicing Agreement (Trendwest Resorts Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer’s property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any “event of default” under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds [ ]%;
(ix) if on any Payment Date, the Cumulative Loan Loss Percentage exceeds the following percentages on any Payment Date during the following periods: [MO/YR] - [MO/YR] [___ ]% [MO/YR] - [MO/YR] [___ ]% [MO/YR] - [MO/YR] [___ ]% [MO/YR] and thereafter [___ ]%
(x) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and to the Note Insurer, and the Indenture Trustee may, with the consent of the Note Insurer, and shall, at the direction of the Note Insurer, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cvii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer in the case of any removal at the direction of the Controlling Class.
(c) In accordance with Section 8.05 Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of an Exchange Note Servicer Event Section 7.01(a), upon receipt of Default, the 2021-A Exchange Noteholder (which for purposes written notice or actual knowledge by a Responsible Officer of this Section shall be the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer, after notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee, terminate all the rights and obligations of the Outstanding Amount of Servicer under this Agreement, except for the Controlling Class) may waive any such Servicer Event of Default Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer selected by the Note Insurer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Note Insurer and 2021-A Vehicles and all information the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust), Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds %;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: __________ - __________ ____ % __________ - __________ ____ % __________ - __________ ____ % __________ and thereafter ____ %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust), Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212012-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212012-A Exchange Note or to this 20212012-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212012-A Exchange Note under the Basic Servicing Agreement or this 20212012-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212012-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212012-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212012-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212012-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212012-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212012-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212012-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212012-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212012-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212012-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212012-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212012-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212012-A Bank Accounts or thereafter received with respect to the 20212012-A Leases and 20212012-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212012-A Leases and 20212012-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2012-A Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2012-A Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 2 contracts
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2012-A), Servicing Supplement (Mercedes-Benz Auto Lease Trust 2012-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Back-up Servicer or the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of sixty (60) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Distribution Date the Rolling Six Month Delinquency Rate exceeds 12.75% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Distribution Date, commencing in June 2000, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Distribution Date occurring before June 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Distribution Date on or after June 1, 2000 and before June 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Distribution Date on or after June 1, 2001 and before June 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Distribution Date on or after June 1, 2002 and before June 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Distribution Date on or after June 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event of Default under the Indenture; or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in Section 8.04 hereof.
(b) So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Periodic Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Distribution Date, the Indenture Trustee, upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and to the Note Insurer and the Back-up Servicer and the Indenture Trustee shall, with the consent of the Note Insurer, terminate all of the rights and obligations of the Servicer under this Agreement and the Back-up Servicer, or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; provided, however, that the occurrence of any event set forth Back-up Servicer shall not be required to act as successor servicer until such time as the Back-up Servicer has agreed in clauses writing with the Indenture Trustee and the Note Insurer to so act; (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the 2021-A Reference Pool Indenture Trustee shall, but only at the direction of the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and will not be a Responsible Officer of the Indenture Trustee and subject to the prior written consent of the Note Insurer, in the case of any removal at the direction of the Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer Event Default under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure clauses (viii)-(x) of performance referred to under clause (iSection 7.01(a), (ii) or (iii) for a period the Indenture Trustee shall, but only at the direction of 120 days will not constitute an Exchange the Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such eventInsurer, after notice in writing to the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in and a timely manner in accordance with the terms Responsible Officer of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at terminate all the written direction of 66 2/3% rights and obligations of the Holders of Servicer under this Agreement and in and to the Outstanding Amount of Mortgage Loans and the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreementproceeds thereof, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequencesas Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Back-up Servicer, or such Successor its designee approved by the Note Insurer, and the Back-up Servicer as may be appointed pursuant is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing AgreementServicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. If The Servicer agrees to cooperate (and pay any related costs and expenses) with the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Back-up Servicer, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A 201[__]-[__] Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A 201[__]-[__] Exchange Note or to this 2021-A 201[__]-[__] Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A 201[__]-[__] Exchange Note under the Basic Servicing Agreement or this 2021-A 201[__]-[__] Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A 201[__]-[__] Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A 201[__]-[__] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A 201[__]-[__] Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A 201[__]-[__] Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A 201[__]-[__] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A 201[__]-[__] Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A 201[__]-[__] Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A 201[__]-[__] Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A 201[__]-[__] Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A 201[__]-[__] Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A 201[__]-[__] Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A 201[__]-[__] Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A 201[__]-[__] Bank Accounts or thereafter received with respect to the 2021-A 201[__]-[__] Leases and 2021-A 201[__]-[__] Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A 201[__]-[__] Leases and 2021-A 201[__]-[__] Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 201[__]-[__] Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 201[__]-[__] Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Daimler Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non- Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, [the Insurer] or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made; provided, which failure materially -------- however, that the breach of any representation or warranty made by the ------- Originator or Servicer in this Assignment and adversely Servicing Agreement will be deemed to be "material" only if it affects the rights of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders orInsurer or the enforceability of the Indenture or of the Notes; and provided, in the event further, that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer a material breach of any representation or -------- ------- warranty made by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event Originator in this Assignment and Servicing Agreement with respect to any of the Servicer; providedLeases or the Equipment subject thereto will not constitute a Servicer Event of Default if the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, howeverinsolvency, that reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or the taking of corporate action by the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence existence of any such eventcondition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables Funding LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note ("Servicer Events of Default” set forth in Section 8.03(a") of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(iA) any The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; PROVIDED, HOWEVER, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to "below average" or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant's report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of ten days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Mortgage Loans, which failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Xxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that 's ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer's ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised give immediate telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys' fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an "Extension Notice") for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a "Servicer Term of Service") until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, Residual Account or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds or payment Lease Payments and any Non-Performing Lease Payments) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited hereunder;
(ii) so long as the Seller is the Servicer hereunder, failure on the part of the Seller to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Seller pursuant to Section 4 hereof;
(iii) failure on the part of either the Servicer or (so long as the Seller is the Servicer) the Seller to duly observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Sales and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Seller or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Seller or the Servicer, as the case may be, by the Indenture Trustee, or to the Seller or the Servicer, as the case may be, and the Trustee by any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Seller in the 2021-A this Sales and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Seller or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Sales and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any representation or warranty made by the Seller in this Sales and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Seller repurchases such Lease and Equipment in accordance with this Sales and Servicing Agreement.
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $1,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more persons to cause) more than $1,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance; or
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $1,000,000 and any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer judgments (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basisdecrees or orders) upon presentation has remained unsatisfied and in effect for any period of reasonable documentation 60 consecutive days without a stay of such costs and expensesexecution.
Appears in 1 contract
Samples: Sales and Servicing Agreement (Copelco Capital Funding Corp Xi)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing AgreementWith respect to each Series, only the occurrence and continuation of any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” Default with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementsuch Series:
(i) any failure by the Servicer to deliver to the Indenture Trustee Subservicer for payment to Noteholders any proceeds or payment payments received from an Obligor or in respect of the related Series Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 1:00 p.m., Chicago time, on the second successive Business Days after Day following such failure; provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Subservicer, upon receiving actual knowledge of such failure;, shall give the Servicer and the Trustee prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Subservicer to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 1:00 p.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteChicago time, the Noteholders orfollowing Business Day; provided, in however, that if the event Trustee has actual knowledge that Certificates are sold to unaffiliated third partiesthe Servicer has not delivered such Monthly Servicer's Report by 1:00 p.m., Chicago time, on a Determination Date, the CertificateholdersTrustee shall give the Servicer written, and which continues unremedied for 90 days after written telecopied or telephonic notice thereof is given of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer by shall not prevent the Indenture Trustee;occurrence of a Servicer Event of Default; or
(iii) any representationfailure by the Servicer to remit any Purchase Price received by it to the Subservicer that continues unremedied until 4:00 p.m., warranty Chicago time, the following Business Day; provided, however, that if the Servicer has not remitted any Purchase Price received by it to the Subservicer by 2:00 p.m., Chicago time, on the Determination Date and the Trustee has received written notification from the Subservicer by way of the applicable Monthly Servicer's Report or statement otherwise that such Purchase Price has not been paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) any failure by the Servicer to make remittances (other than a remittance of Purchase Price referred to in clause (iii) above) or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 1:00 p.m., Chicago time, of the second successive Business Day; or
(v) any failure on the part of the Servicer made duly to observe or perform any other covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement or the Indenture or the related Series Supplement, as the case may be, or any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when maderespect, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure or breach continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach, or receives written notice thereof is given to the Servicer by the Indenture Trusteeof such failure or breach; or
(ivvi) any assignment by the Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) the entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect, or failure for such petition to be dismissed, for a period of 60 consecutive days; or
(viii) the commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay their debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) the stockholders' equity of the Servicer and its consolidated subsidiaries, determined in accordance with generally accepted accounting principles, as would be shown on a consolidated balance sheet for such Persons, is below $50,000,000; or
(x) the occurrence of an Insolvency a Trigger Event with respect to if the initial Servicer is the Servicer; provided, however, that or
(xi) the occurrence of any event set forth in clauses a Subservicer Event of Default.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note If a Servicer Event of Default only with respect to the 2021-A Reference Pool shall have occurred and will not be a Servicer Event Default continuing with respect to any other Reference Pool or Series, the Revolving Facility PoolTrustee shall, upon written direction of the Holders of Notes representing not less than 66-2/3% in principal amount of the Controlling Class of Notes Outstanding of such Series, by notice (the "Servicer Termination Notice") given in writing to the Servicer of such Series terminate all, but not less than all, of the rights and obligations (except as expressly provided herein) of the Servicer under this Agreement with respect to such Series. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSections 6.01(a)(ii) or (iii6.01(a)(v) hereof for a period of 120 30 or more days will shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeure. Upon the occurrence acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes; provided, however, that in any such event, such delay or failure shall constitute a Servicer Event of Default if it continues unremedied for a period of 35 days. The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of Servicer shall provide the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction Issuer and the Noteholders with prompt notice of 66 2/3% such failure or delay by it or the Subservicer, together with a description of the Holders of the Outstanding Amount of the Controlling Classits efforts to so perform its obligations.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.[Reserved]
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer with respect to such Series under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Contracts of such Series or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to Section 6.02 hereof, and, without limitation, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the terms purposes of such notice of termination, whether to complete the transfer of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant Contracts and related documents related to this Sectionsuch Series, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for depositdeposit related to such Series, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Servicer or thereafter received with respect to Contracts related to such Series. To assist the 2021-A Leases and 2021-A Vehicles and successor Servicer in enforcing all information or documents that the Indenture Trustee or rights under such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In additionContracts, the Servicer outgoing Servicer, at its own expense, shall transfer its records (electronic records and otherwise) relating to the 2021-A Leases and 2021-A Vehicles such Contracts to the Successor successor Servicer in such electronic form as the Successor successor Servicer may reasonably request. All Transition Costs request and shall be paid transfer the related Contracts (to the extent not held by the outgoing Trustee) and all other records, correspondence and documents relating to such Contracts that it may possess to the successor Servicer (or by in the initial manner and at such times as the successor Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesshall reasonably request.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note ("Servicer Events of Default” set forth in Section 8.03(a") of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) Any failure by the Servicer to deposit in or credit to the Collection Account or the Lock-Box Accounts any amount required under this Servicing Agreement to be so deposited or credited by the Servicer and such failure continues unremedied for a period of three Business Days;
(ii) Any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered a Servicer Report in accordance with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date Section 3.1 by 4:00 p.m., New York City time, on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failureReport Date;
(iiiii) any Any failure by the Servicer to comply with any provision of Section 4.2;
(iv) Any failure by the Servicer to deliver to the Trustee an accountant's report in accordance with Section 3.3 or 3.4, which non-delivery shall continue unremedied for ten Business Days;
(v) A Trigger Event shall have occurred which has not been cured by a Trigger Event Cure within 120 days after such Trigger Event has occurred;
(vi) Any failure by the Servicer duly to observe or to perform in any material respect any other of its covenants or agreements of the Servicer set forth in the 2021-A this Servicing Agreement, which failure materially and adversely affects the rights shall have continued for a period of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 fifteen days after the earlier of (A) written notice thereof is shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Trustee by a Noteholder or (B) discovery of such failure by the Servicer;
(iiivii) any Any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A this Servicing Agreement shall prove to be incorrect in any material respect as of the time when madethe same shall have been made and such incorrectness shall have a material adverse effect on the collectibility of the Mortgage Loans or the ability of the Servicer to perform its obligations hereunder, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Noteand, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 within thirty days after the earlier of (A) written notice thereof is shall have been given to the Servicer by the Indenture Trustee; orTrustee or to the Servicer and the Trustee by a Noteholder or (B) discovery of such inaccuracy by the Servicer, the circumstance or condition in respect of which such representation, warranty or statement was incorrect shall not have been eliminated or otherwise cured in all material respects;
(ivviii) The entry of a decree or order for relief by a court or regulatory authority having jurisdiction in respect of the occurrence Servicer in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, rehabilitation or similar law; the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Servicer in respect of any substantial part of their property, or the entering of an Insolvency Event with respect to order for the Servicer; provided, however, that winding up or liquidation of the occurrence affairs of the Servicer and the continuance of any event set forth such decree or order unstayed and in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) effect for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure sixty consecutive days, or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence commencement of an Exchange Note Servicer Event of Default, any actions to be taken by involuntary case under the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether federal bankruptcy laws with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.to
Appears in 1 contract
Samples: Servicing Agreement (Sunterra Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any In case one or more of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of Default by the Basic Servicing Agreement Servicer shall not apply occur and be continuing, that is to the 2021-A Exchange Note or to this 2021-A Servicing Supplementsay:
(i1) any failure by Servicer to deposit into the Collection Account or the Distribution Account or any failure by the Servicer to deliver to make payments therefrom in accordance with Section 5.01; or
(2) any failure on the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the material covenants or agreements on the part of the Servicer, contained in any Basic Document to which it is a party, which continues unremedied for a period of 30 days (or, in the 2021-A Servicing Agreementcase of payment of insurance premiums, for a period of 15 days) after the date on which failure written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any other party hereto or to the Servicer (with copy to each other party hereto), by Holders of 25% of the Percentage Interests of the Notes or the Trust Certificates; or
(3) any breach on the part of the Servicer of any representation or warranty contained in any Basic Document to which it is a party that materially and adversely affects the rights interests of holders any of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, parties hereto or any Securityholder and which continues unremedied for 90 a period of 30 days after written the date on which notice thereof is of such breach, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty other party hereto or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer (with copy to each other party hereto), by the Indenture TrusteeInitial Noteholder or Holders of 25% of the Percentage Interests (as defined in the Indenture) of the Notes; or
(iv4) there shall have been commenced before a court or agency or supervisory authority having jurisdiction in the occurrence premises an involuntary proceeding against the Servicer under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of an Insolvency Event with respect to a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the Servicer; providedwinding-up or liquidation of its affairs, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will which action shall not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) have been dismissed for a period of 120 days will 60 days; or
(5) the Servicer shall consent to the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its property; or
(6) the Servicer (or the Loan Originator if the Servicer is not constitute an Exchange Note Option One) fails to comply with the Financial Covenants; or
(7) the Servicer Event ceases to be a 100% indirect wholly-owned subsidiary of Default if that failure or delay was caused by Force Majeure. Upon H&R Block Inc; or
(8) the occurrence Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any such eventapplicable bankruptcy, insolvency or reorganization statute, make an assignment for the Servicer will not be relieved from using all commercially reasonable efforts to perform benefit of its obligations creditors, voluntarily suspend payment of its obligations, or take any corporate action in a timely manner in accordance with the terms furtherance of the Basic Servicing Agreement and this 2021-A Servicing Supplementforegoing.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of DefaultThen, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trusteeand in each and every such case, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such so long as a Servicer Event of Default and its consequences. Upon any such waivershall not have been remedied, the applicable Exchange Note Indenture Trustee or the Majority Noteholders, by notice in writing to the Servicer Event may, in addition to whatever rights such Person may have at law or in equity to damages, including injunctive relief and specific performance, may terminate all the rights and obligations of Default will cease the Servicer under this Agreement and in and to existthe Loans and the proceeds thereof, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Upon receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Loans or otherwise, shall, without further actionsubject to Section 9.02 hereof, pass to and be vested in a successor servicer, and the Indenture Trustee or such Successor Servicer as may be appointed pursuant successor servicer is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Sectionpurposes of such notice of termination, including, but not limited to, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one transfer and endorsement or assignment of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-ServicerLoans and related documents. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts to each Collection Account or thereafter received with respect to the 2021Loans.
(c) Upon the occurrence of (i) an Event of Default or Default under any of the Basic Documents, (ii) a Servicer Event of Default under this Agreement, (iii) a Rapid Amortization Trigger, or (iv) an event that shall materially impair the ability of the Servicer to service and administer the Loans in accordance with the terms and provisions set forth in the Servicing Addendum (each, a "Term Event"), the Servicer's right to service the Loans pursuant to the terms of this Agreement shall be in effect for an initial period commencing on the date on which such Term Event occurred and shall automatically terminate at 5:00 p.m.,New York City time, on the last business day of the calendar month in which such Term Event occurred (the "Initial Term"). Thereafter, the Initial Term shall be extendible in the sole discretion of the Initial Noteholder by written notice (each, a "Servicer Extension Notice") of the Noteholder for successive one-A Leases and 2021-A Vehicles and all information or documents month terms (each such term ending at 5:00 p.m., New York City time ("EST"), on the last business day of the related month). Following a Term Event, the Servicer hereby agrees that the Indenture Trustee or such Successor Servicer may require, shall be bound for the duration of the Initial Term and the Successor term covered by any such Servicer Extension Notice to act as the Servicer pursuant to this Agreement. Following a Term Event, the Servicer agrees that if, as of 3:00 p.m. (EST) on the last business day of any month, the Servicer shall not be liable if it cannot perform due have received a Servicer Extension Notice from the Initial Noteholder, the Servicer shall give written notice of such non-receipt to the Initial Noteholder by 4:00 p.m. (EST). Following a Term Event, the failure of the predecessor Initial Noteholder, to deliver a Servicer to so deliverExtension Notice by 5:00 p.m. (EST) shall result in the automatic and immediate termination of the Servicer (the "Termination Date"). In additionNotwithstanding these time frames, the Servicer and the Initial Noteholder shall comply with all applicable laws in connection with such transfer its electronic records relating and the Servicer shall continue to service the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation Loans until completion of such costs and expensestransfer.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Payment Date, commencing in September 2001, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company Stockholders' Equity Trigger; and
(xi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an shall constitute a “Exchange Note Servicer Event of Default” with respect to on the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) part of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementServicer:
(ia) any failure by the Servicer to deliver remit to the Indenture Trustee Purchaser or the Junior Participation Holder any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of five (5) Business Days after the earlier of the date on upon which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of Purchaser and/or the Servicer has actual knowledge of such failure;Junior Participation Holder; or
(iib) any failure by to materially perform any of its other duties under this Agreement for a period in excess of thirty (30) days following the date of Servicer’s receipt of written notice from Purchaser or the Junior Participation Holder, notifying Servicer of the existence of and specifying in reasonable detail the nature of the default; provided however, if the default is of a nature that cannot reasonably be cured within thirty (30) days, Servicer shall have such additional time as may be reasonable and necessary within which to cure such default (provided however, such additional time shall in no event extend beyond thirty (60) days); or
(c) the second occurrence, during any twelve (12) month period, of Servicer’s failure to (1) remit any payment required under Section 10.01(a) or (2) materially perform any of its duties under this Agreement as to which notice has previously during such twelve (12) month period been given to Servicer under Section 10.01 (b); or
(d) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, including bankruptcy, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days; or
(e) the Servicer shall consent to duly observe the appointment of a conservator or perform receiver or liquidator in any material respect insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of the property of the Servicer; or
(f) the Servicer shall fail to pay, or shall admit in writing its inability to pay, its debts generally as they become due, file a petition to take advantage of any other applicable insolvency, bankruptcy or reorganization statute or make an assignment for the benefit of its covenants creditors. In each and every such case, so long as a Servicer Event of Default shall not have been remedied, in addition to whatsoever rights the Purchaser or agreements in the 2021-A Servicing AgreementJunior Participation Holder may have at law or equity, which failure materially including, without limitation, seeking damages, including injunctive relief and adversely affects the rights of holders of interests in the 2021-A Exchange Notespecific performance, the Noteholders or, Purchaser (or the Junior Participation Holder only in the event that Certificates are sold the Senior Participation Principal Balance has been reduced to unaffiliated third partieszero), the Certificateholders, and which continues unremedied for 90 days after written by five (5) Business Days’ prior notice thereof is given in writing to the Servicer by and without the Indenture Trustee;
(iii) payment of any representationtermination fee, warranty or statement may assume the servicing of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered Mortgage Loans pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Upon receipt by the Servicer of such written notice that Purchaser or the Junior Participation Holder is assuming the servicing of an Exchange Note Servicer Event of Defaultthe Mortgage Loans pursuant to this Agreement, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee Purchaser or the Junior Participation Holder, as the case may be, thereafter. In such Successor case, upon written request from the Purchaser or the Junior Participation Holder, the Servicer as may be appointed pursuant shall prepare, execute and deliver to the terms new servicer any and all documents and other instruments, place in such new servicer’s possession all Mortgage Files, and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including but not limited to the transfer and endorsement or assignment of the Basic Servicing Agreement. If Mortgage Loans and related documents, at the Indenture Trustee shall become Successor Servicer pursuant Servicer’s sole expense to this Sectionthe Purchaser or Junior Participation Holder, as the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicercase may be. The outgoing Servicer shall cooperate with the Indenture TrusteePurchaser or the Junior Participation Holder, as the Owner Trustee and such Successor Servicer case may be, in effecting the termination of the responsibilities and Servicer’s rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including without limitation, the immediate transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts or Custodial Account thereafter received with respect to the 2021-A Leases Mortgage Loans. Notwithstanding the foregoing, if the Purchaser, its Affiliate or assign becomes the Servicer through an occurrence described in Section 4.08, so long as any thereof remain the Servicer, Sections 10.01(b),(c),(d),(e) and 2021-A Vehicles and all information (f) shall no longer constitute a Servicer Event of Default. If Purchaser, its Affiliate or documents that assignee takes over the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure servicing of the predecessor Mortgage Loans and while any thereof continues to service the Mortgage Loans pursuant hereto, if a Servicer Event of Default shall occur as to so deliver. In additionPurchaser, its Affiliate or assignee, the Junior Participation Holder may designate a reputable institutional loan servicer to act as Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesthereafter.
Appears in 1 contract
Samples: Purchase, Warranties, Participation and Servicing Agreement (LTC Properties Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212013-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212013-A Exchange Note or to this 20212013-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212013-A Exchange Note under the Basic Servicing Agreement or this 20212013-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212013-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212013-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212013-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212013-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212013-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212013-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212013-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212013-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212013-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212013-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212013-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212013-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212013-A Bank Accounts or thereafter received with respect to the 20212013-A Leases and 20212013-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212013-A Leases and 20212013-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2013-A Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2013-A Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2013-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer ("Events of Default” set forth in Section 8.03(a") of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(iA) any The failure by the Servicer to deliver make any Monthly Advance; or (B) any other failure by the Servicer to deposit into the Indenture Trustee Collection Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of one Business Days Day after the earlier of the date on upon which (A) written notice of such failure is shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer to the Servicer and the Indenture Trustee by the Note Insurer or to the Servicer and the Indenture Trustee by Holders of Class A Notes evidencing not less than 25% of the Servicer has actual knowledge of such failure;Voting Rights; or
(ii) any The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of 30 days, or the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-Class A Exchange Note, Noteholders or the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, Note Insurer and which failure continues unremedied for 90 days a period of 60 days, in each case, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or to the Servicer and the Indenture Trustee by Holders of Class A Notes evidencing not less than 25% of the Voting Rights; or
(iii) any representation, warranty or statement of The entry against the Servicer made of a decree or order by a court or agency or supervisory authority having jurisdiction in the 2021-A Servicing Agreement premises for the appointment of a trustee, conservator, receiver or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect liquidator in any material respect when madeinsolvency, which failure materially conservatorship, receivership, readjustment of debt, marshalling of assets and adversely affects liabilities or similar proceedings, or for the rights winding up or liquidation of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholdersits affairs, and which failure continues unremedied the continuance of any such decree or order unstayed and in effect for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteea period of 60 consecutive days; or
(iv) the occurrence of an Insolvency Event with respect The Servicer shall voluntarily go into liquidation, consent to the Servicerappointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force undischarged, unbonded or unstayed for a period of 60 days; providedor the Servicer shall admit in writing its inability to pay its debts generally as they become due, however, that the occurrence file a petition to take advantage of any event set forth applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) a Servicer Termination Delinquency Event shall have occurred;
(vi) a Servicer Termination Loss Event shall have occurred; or
(vii) if the total stockholders' equity of the Servicer, as determined by the Servicer's independent accountants on an annual basis in clauses accordance with generally accepted accounting principles or as determined by the Servicer in any quarterly financial statement prepared in accordance with generally accepted accounting principles, shall be less than $25 million.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note then, and in each and every such case, so long as a Servicer Event of Default only shall not have been remedied, (x) with respect solely to clause (i)(A) above, if such Monthly Advance is not made by 12:00 Noon New York time on the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of such failure, shall give immediate telephonic notice of such failure to a Servicing Officer of the Servicer and to the 2021-A Reference Pool Note Insurer and will not be the Indenture Trustee shall terminate all of the rights and obligations of the Servicer under this Agreement and the Indenture Trustee as successor servicer, or a Servicer Event Default successor servicer appointed in accordance with respect Section 6.02, shall immediately make such Monthly Advance and assume, pursuant to any other Reference Pool or Section 6.02 hereof, the Revolving Facility Pool. Notwithstanding duties of a successor Servicer; (y) in the foregoing, a delay in or failure case of performance referred to under clause clauses (ii)(B), (ii) or ), (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such eventand (iv), the Servicer will Indenture Trustee shall, at the direction of the Note Insurer or the Holders of the Class A Notes evidencing not be relieved from using all commercially reasonable efforts to perform its obligations less than 51% of the Voting Rights, and (z) in a timely manner the case of (i)(B)(v) and (vi), the Note Insurer may, in accordance with the terms of the Basic Servicing Agreement Insurance Agreement, by notice then given in writing to the Servicer (and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) the Indenture Trustee if given by Holders of Notes), terminate all of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% rights and obligations of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No Any such waiver will extend notice to any subsequent or other event or impair any right consequent thereon.
(d) the Servicer shall also be given to each Rating Agency, the Depositor and the Note Insurer. On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed successor servicer pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Indenture Trustee shall be entitled is hereby authorized and empowered to appoint execute and deliver, on behalf of the Servicer, as subattorney-Servicer in-fact or otherwise, any one of its Affiliates and all documents and other instruments, and to do or agents; provided that accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer as successor servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the Servicer with respect to the 2021-A Leases Mortgage Loans. All reasonable costs and 2021-A Vehicles and all information or documents that expenses (including attorneys' fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due Mortgage Files to the failure of the predecessor successor Servicer and amending this Agreement to so deliver. In addition, the reflect such succession as Servicer shall transfer its electronic records relating pursuant to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs this Section 6.01 shall be paid by the outgoing predecessor Servicer (or by the initial Servicer if the outgoing predecessor Servicer is the Indenture Trustee acting on an interim basisTrustee, the initial Servicer) upon presentation of reasonable documentation of such costs and expenses. If the Indenture Trustee is acting as successor servicer and the predecessor Servicer fails to pay such costs and expenses, the Indenture Trustee shall be entitled to reimbursement from the Trust to the extent set forth in Section 3.05 of the Indenture. Notwithstanding the foregoing, a delay in or failure of performance under Section 6.01(a)(i) for a period of ten Business Days, or under Section 6.01(a)(ii), for a period of 60 Business Days, shall not constitute a Servicer Event of Default if such delay or failure could not be prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an act of God or the public enemy, acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence shall not relieve the Servicer from using its best efforts to perform its respective obligations in a timely manner in accordance with the terms of this Agreement and the Servicer shall provide the Indenture Trustee, the Note Insurer and the Noteholders with an Officers' Certificate giving prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. The Servicer shall immediately notify the Indenture Trustee in writing of any Events of Default.
Appears in 1 contract
Samples: Servicing Agreement (Home Loan Mortgage Loan Trust 2004-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of forty-five (45) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture TrusteeTrustee of any "event of default" under the Insurance Agreement;
(viii) if on any Distribution Date the Rolling Three Month Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal Balance of the Mortgage Loans;
(ix) if on any Distribution Date, commencing in December 2002, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month (or, if later, the Cut-Off Date);
(x) ABFS or the Servicer shall fail to pay any principal or interest when due on any outstanding indebtedness having an aggregate principal amount in excess of $1,000,000 and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such outstanding indebtedness, or any such outstanding indebtedness of ABFS or the Servicer having an aggregate principal amount in excess of $1,000,000 shall be declared to be due and payable or required to be prepaid (other than a regular scheduled payment) prior to the date of maturity thereof;
(xi) Net Worth of ABFS on a consolidated basis shall be less than the sum of (i) $30,000,000 plus (ii) 50% of the cumulative Net Income for each fiscal quarter ending after the Closing Date (excluding any fiscal quarter for which Net Income was less than zero);
(xii) any Change of Control shall occur; or
(ivxiii) the occurrence of an Insolvency Event with respect to of Default under the Servicer; provided, however, that the occurrence of any event set forth in clauses Indenture.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Periodic Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon, New York, New York time on the fourth Business Day prior to the 2021-A Reference Pool applicable Distribution Date, the Indenture Trustee, may, and will not be upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer Event Default and to the Note Insurer and the Indenture Trustee may, and shall, at the direction of the Note Insurer (absent a Note Insurer Default), terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligation under Section 5.19, and the Indenture Trustee, or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer and (y) with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes Indenture Trustee shall, but only at the direction of this Section shall be the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Indenture TrusteeTrustee and subject to the prior written consent of the Note Insurer, acting in the case of any removal at the written direction of 66 2/3% the Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Holders of Servicer under this Agreement, except for the Outstanding Amount of Servicer's indemnification obligations under Section 5.19, and in and to the Controlling Class) may waive any such Servicer Event of Default Mortgage Loans and its consequencesthe proceeds thereof, as servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer other Person as may be appointed pursuant to specified by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights hereunder and the transfer of the outgoing Servicer under this 2021-A Servicing Supplementsuch responsibilities and rights to a successor Servicer, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee or any proceeds or other party any payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic Servicing terms of this Agreement or this 2021-A any other Basic Document (other than Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer;
(ii) the failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.02 hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made or ABFS and such decree or order shall have remained in force, undischarged or unstayed for a period of forty-five (45) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or ABFS or of or relating to all or substantially all of the Servicer's or ABFS property;
(vi) the Servicer or ABFS shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture TrusteeTrustee of any "event of default" under the Insurance Agreement;
(viii) a Trigger Event shall occur;
(ix) ABFS shall breach any of the financial covenants set forth in Section 5.06 herein;
(x) a Change of Control shall occur;
(xi) ABFS or the Servicer shall pay any Subordinated Debt in advance of their stated maturity or, after a Default or Event of Default under the Basic Agreements has occurred, make any payment of any kind on any Subordinated Debt until all of the obligations have been paid and performed in full; or ABFS shall permit the outstanding principal balance of its Subordinated Debt at any time to be more than 10% lower than the outstanding principal balance at the end of the last fiscal quarter;
(xii) ABFS or the Servicer permit the Eligible Liquid Assets of ABFS (and its subsidiaries, on a consolidated basis) at the end of any calendar quarter to be less than 30% of the amount of principal scheduled to become due on the subordinated debt in the next three (3) months;
(xiii) ABFS or the Servicer shall fail to pay any principal or interest when due on any outstanding indebtedness having an aggregate principal amount in excess of $1,000,000 and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such outstanding indebtedness, or any such outstanding indebtedness of ABFS or the Servicer having an aggregate principal amount in excess of $1,000,000 shall be declared to be due and payable or required to be prepaid (other than a regularly scheduled payment) prior to the date of maturity thereof; or
(ivxiv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 9.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer, Back-up Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Controlling Party, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligation under Section 7.19, and the Back-up Servicer shall become the Servicer and shall immediately make such Periodic Advance (based on the best information available to it at the time) and assume, pursuant to Section 9.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 9.01(a)(i) not referred to in the preceding clause (x) and with respect to all other clauses of Section 9.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 Party, by notice in writing to the Servicer and a Responsible Officer of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholder or the Note Insurer may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders of Servicer under this Agreement, except for the Outstanding Amount of Servicer's indemnification obligations under Section 7.19, and in and to the Controlling Class) may waive any such Servicer Event of Default Mortgage Loans and its consequencesthe proceeds thereof, as servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Back-up Servicer, or such Successor its designee approved by the Controlling Party, and the Back-up Servicer as may be appointed pursuant is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing AgreementServicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. If The Servicer agrees to cooperate with (and pay any reasonable out-of-pocket related costs and expenses incurred by) the Indenture Trustee shall become Successor Servicer pursuant to this Section, and the Indenture Trustee shall be entitled to appoint as subBack-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor up Servicer in effecting the termination of the Servicer's responsibilities and rights hereunder and the transfer of such responsibilities to the outgoing Servicer under this 2021Back-A Servicing Supplementup Servicer, including including, without limitation, the transfer to the Indenture Trustee or such Successor Back-up Servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor shall promptly notify the Note Insurer, Back-up Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an (“Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) any (A) The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; provided, however, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to “below average” or below; or
(viii) the failure by the Servicer to comply, within the required time periods, with Section 3.09 or the certification described under Section 3.10;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any certificate, report required reports or other writing delivered pursuant data pertaining to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when madeMortgage Loans, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of fifteen days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Sxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that ’s ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer’s ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised promptly give telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys’ fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an “Extension Notice”) for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a “Servicer Term of Service”) until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2007-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Back-up Servicer or the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of sixty (60) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Distribution Date the Rolling Six Month Delinquency Rate exceeds 12.75% for Mortgage Loan Pool I and 12.75% for Mortgage Loan Pool II;
(ix) if on any Distribution Date, commencing in December 1999, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans in Pool I and 1.75% for the Mortgage Loans in Pool II, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Distribution Date occurring before December 1, 1999, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Distribution Date on or after December 1, 1999 and before December 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Distribution Date on or after December 1, 2000 and before December 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Distribution Date on or after December 1, 2001 and before December 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Distribution Date on or after December 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event of Default under the Indenture; or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in Section 8.04 hereof.
(b) So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Periodic Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Distribution Date, the Indenture Trustee, upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Note Insurer, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligation under Section 5.19, and the Back-up Servicer, or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; provided, however, that the occurrence of any event set forth Back-up Servicer shall not be required to act as successor servicer until such time as the Back-up Servicer has agreed in clauses writing with the Indenture Trustee and the Note Insurer to so act; (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the 2021Indenture Trustee shall, but only at the direction of the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and the Back-A Reference Pool up Servicer and will not be a Responsible Officer of the Indenture Trustee and subject to the prior written consent of the Note Insurer, in the case of any removal at the direction of the Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer Event Default under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure clauses (viii)-(x) of performance referred to under clause (iSection 7.01(a), (ii) or (iii) for a period the Indenture Trustee shall, but only at the direction of 120 days will not constitute an Exchange the Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon Insurer, after notice in writing to the occurrence of any such eventServicer, the Back-up Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in and a timely manner in accordance with the terms Responsible Officer of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at terminate all the written direction of 66 2/3% rights and obligations of the Holders of Servicer under this Agreement and in and to the Outstanding Amount of Mortgage Loans and the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreementproceeds thereof, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequencesas Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Back-up Servicer or such Successor its designee approved by the Note Insurer, and the Back-up Servicer as may be appointed pursuant is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing AgreementServicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. If The Servicer agrees to cooperate (and pay any related costs and expenses) with the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Back-up Servicer, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth -------- ------- representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of -------- ------- any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212016-A B Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212016-A B Exchange Note or to this 20212016-A B Servicing Supplement:
: (i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212016-A B Exchange Note under the Basic Servicing Agreement or this 20212016-A B Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
; (ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212016-A B Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212016-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
; (iii) any representation, warranty or statement of the Servicer made in the 20212016-A B Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212016-A B Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212016-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
or (iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212016-A B Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212016-A B Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212016-A B Servicing Supplement.
. 17 (b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212016-A B Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Servicing Supplement
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer (A) to deliver to the Indenture Local Bank for deposit in the Local Bank Account or (B) to deliver or cause to be delivered to the Trustee for deposit in the Collection Account, any proceeds or payment payments received from an Obligor or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 2:00 p.m., New York time, on the second successive Business Days after Day following such failure; or provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 2:00 p.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteNew York time, the Noteholders orfollowing Business Day; provided, in however, that if the event Trustee has actual knowledge that Certificates are sold to unaffiliated third partiesthe Servicer has not delivered such Monthly Servicer's Report by 2:00 p.m., New York time, on a Determination Date, the CertificateholdersTrustee shall give the Servicer written, and which continues unremedied for 90 days after written telecopied or telephonic notice thereof is given of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer by shall not prevent the Indenture Trustee;occurrence of a Servicer Event of Default; or
(iii) any representationfailure by the Servicer to remit any Purchase Price received by it to the Trustee that continues unremedied until 5:00 p.m., warranty New York time, the following Business Day; provided, however, that if the Servicer has not remitted any Purchase Price received by it to the Trustee by 3:00 p.m., New York time, on the Determination Date and the Trustee has actual knowledge that such Purchase Price has not been paid, the Trustee shall give the Servicer prompt written, telecopied or statement telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) any failure by the Servicer to make remittances (other than a remittance of Purchase Price referred to in clause (iii) above) or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 2:00 p.m., New York time, of the second successive Business Day; or
(v) any failure on the part of the Servicer made duly to observe or perform any other covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement or the Indenture or any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when maderespect, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure or breach continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach, or receives written notice thereof is given to the Servicer by the Indenture Trusteeof such failure or breach; or
(ivvi) any assignment by the Servicer to a delegate of its duties or rights under this Agreement or except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) the entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect, or failure for such petition to be dismissed, for a period of 60 consecutive days; or
(viii) the commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay their debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) the stockholders' equity of the Servicer and its consolidated subsidiaries, determined in accordance with generally accepted accounting principles, as would be shown on a consolidated balance sheet for such Persons, is below $50,000,000; or
(x) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses a Trigger Event.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note If a Servicer Event of Default only with respect shall have occurred and be continuing, the Trustee may, and shall upon written direction of the Holders of Notes representing not less than 66-2/3% in principal amount of the Outstanding Notes of the Controlling Class, by notice (the "Servicer Termination Notice") given in writing to the 2021-A Reference Pool Servicer, terminate all, but not less than all, of the rights and will not be a obligations (except as expressly provided herein) of the Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolunder this Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSections 6.01(a)(ii) or (iii6.01(a)(v) hereof for a period of 120 not more than 30 days will past the applicable cure period shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeure. Upon the occurrence acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes; provided, however, that in any such event, such delay or failure shall constitute a Servicer Event of Default if it continues unremedied for a period of 30 days past the applicable cure period. The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of Servicer shall provide the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction Issuer and the Noteholders with prompt notice of 66 2/3% such failure or delay by it, together with a description of the Holders of the Outstanding Amount of the Controlling Classits efforts to so perform its obligations.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, Agreement shall pass to and be vested in the Indenture Trustee or such Successor as successor Servicer as may be unless another successor Servicer is appointed pursuant to Section 6.02 hereof; any successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the terms purposes of such notice of termination, whether to complete the transfer of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionLoan Documents, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Servicer or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and Trust Estate. To assist the successor Servicer in enforcing all information rights under the Contracts, the outgoing Servicer, at its own expense (including, without limitation, any costs or documents that expenses associated with the Indenture Trustee or such Successor Servicer may require, complete transfer of all servicing data and the Successor completion, correction or manipulation of such servicing data as may be required by the successor Servicer shall not be liable if it cannot perform due to correct any errors or insufficiencies in the servicing data or otherwise to enable the successor Servicer to service the Contracts properly and effectively to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor successor Servicer in such electronic form as the Successor successor Servicer may reasonably request. All Transition Costs ), shall be paid transfer its records (electronic and otherwise) relating to the Trust Estate and shall transfer the related Loan Documents (to the extent not held by the outgoing Trustee) and all other records, correspondence and documents relating to the Trust Estate that it may possess to the successor Servicer (or by in the initial manner and at such times as the successor Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesshall reasonably request.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A 20[__]-[_] Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A 20[__]-[_] Exchange Note or to this 2021-A 20[__]-[_] Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A 20[__]-[_] Exchange Note under the Basic Servicing Agreement or this 2021-A 20[__]-[_] Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A 20[__]-[_] Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A 20[__]-[_] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A 20[__]-[_] Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A 20[__]-[_] Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A 20[__]-[_] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A 20[__]-[_] Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A 20[__]-[_] Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A 20[__]-[_] Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A 20[__]-[_] Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount [of the Controlling Class].
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A 20[__]-[_] Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount [of the Controlling Class]) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A 20[__]-[_] Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionSection 7.01(a), the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A 20[__]-[_] Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A 20[__]-[_] Bank Accounts or thereafter received with respect to the 2021-A 20[__]-[_] Leases and 2021-A 20[__]-[_] Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A 20[__]-[_] Leases and 2021-A 20[__]-[_] Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Servicing Supplement (Daimler Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of forty-five (45) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture TrusteeTrustee of any "event of default" under the Insurance Agreement;
(viii) if on any Distribution Date the Rolling Three Month Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal Balance of the Mortgage Loans;
(ix) if on any Distribution Date, commencing in September 2002, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month (or, if later, the Cut-Off Date);
(x) ABFS or the Servicer shall fail to pay any principal or interest when due on any outstanding indebtedness having an aggregate principal amount in excess of $1,000,000 and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such outstanding indebtedness, or any such outstanding indebtedness of ABFS or the Servicer having an aggregate principal amount in excess of $1,000,000 shall be declared to be due and payable or required to be prepaid (other than a regular scheduled payment) prior to the date of maturity thereof;
(xi) Net Worth of ABFS on a consolidated basis shall be less than the sum of (i) $30,000,000 plus (ii) 50% of the cumulative Net Income for each fiscal quarter ending after the Closing Date (excluding any fiscal quarter for which Net Income was less than zero);
(xii) any Change of Control shall occur; or
(ivxiii) the occurrence of an Insolvency Event with respect to of Default under the Servicer; provided, however, that the occurrence of any event set forth in clauses Indenture.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Periodic Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon, New York, New York time on the fourth Business Day prior to the 2021-A Reference Pool applicable Distribution Date, the Indenture Trustee, may, and will not be upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer Event Default and to the Note Insurer and the Indenture Trustee may, and shall, at the direction of the Note Insurer (absent a Note Insurer Default), terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligation under Section 5.19, and the Indenture Trustee, or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer and (y) with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes Indenture Trustee shall, but only at the direction of this Section shall be the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Indenture TrusteeTrustee and subject to the prior written consent of the Note Insurer, acting in the case of any removal at the written direction of 66 2/3% the Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Holders of Servicer under this Agreement, except for the Outstanding Amount of Servicer's indemnification obligations under Section 5.19, and in and to the Controlling Class) may waive any such Servicer Event of Default Mortgage Loans and its consequencesthe proceeds thereof, as servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer other Person as may be appointed pursuant to specified by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights hereunder and the transfer of the outgoing Servicer under this 2021-A Servicing Supplementsuch responsibilities and rights to a successor Servicer, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an (“Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) any (A) The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; provided, however, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to “below average” or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant’s report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of ten days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Mortgage Loans, which failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Sxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that ’s ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer’s ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised give immediate telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys’ fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an “Extension Notice”) for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a “Servicer Term of Service”) until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-3)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer and the Note Insurer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(ii) the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(iiiii) any failure by on the part of the Master Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer's property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021-A Servicing Agreement benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any certificate"event of default" under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, report or other writing delivered pursuant the Twelve Month Loss Amount exceeds 2.50% of the Aggregate Principal Balance of the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if the total stockholders' equity of the Master Servicer, as determined by the Master Servicer's independent accountants in accordance with generally accepted accounting principles, shall be less than the sum of (1) $30 million and (2) 75% of the net proceeds to the 2021Master Servicer of any initial public offering of its common stock;
(xi) if the total on- or off-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given balance sheet financing available to the Master Servicer by the Indenture Trustee; orshall be less than $400 million;
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agentsIndenture; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.or
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accred Home LNDRS Inc Ac Mor Ln Tr 2002-1 as Bk Nt Se 2002-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 23.80%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: April 2009 to March 2010 6.50 % April 2010 to March 2011 7.00 % April 2011 to March 2012 7.50 % April 2012 and thereafter 8.00 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Swap Provider of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
: (i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to Certificateholders any proceeds or payment payments received from a Customer or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Trust and Security Agreement or and this 2021-A Servicing Supplement Agreement that continues unremedied for ten until 10:00 a.m. (Minneapolis time) on the following Business Days after Day; provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;
, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or (ii) any Any failure by the Servicer to deliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m., Minneapolis time, the following Business Day; provided, however, that if the Servicer has not delivered the Monthly Servicer's Report by 12:00 noon (Minneapolis time) on the Determination Date, the Trustee shall give the Servicer notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or (iii)Any failure by the Servicer to make a Servicer Advance pursuant to Section 3.04 hereof or to deposit any Removal Price received by it that continues unremedied until 10:00 a.m. (Minneapolis time) the following Business Day; provided, however, that if the Servicer has not made the Servicer Advance or deposited any Removal Price received by it by 12:00 noon (Minneapolis time) on the Determination Date and the Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Removal Price is to be paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or (iv) Any failure on the part of the Servicer in its capacity as such duly to observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made set forth in the 2021-A Servicing this Agreement or the Trust and Security Agreement, as the case may be, or if any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when madeincorrect, which failure or breach (A) materially and adversely affects or could affect the interest or rights of holders of interests in the 2021-A Exchange NoteMBIA, the Noteholders orTrustee, in or the event that Certificates are sold to unaffiliated third parties, the Certificateholders, Certificateholders and which failure (B) continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach or written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture Trustee; or
(iv) , MBIA, the occurrence Transferor, or the Back-up Servicer, or to a Servicing Officer of an Insolvency Event with respect to the Servicer, MBIA and the Trustee by Holders of Certificates representing not less than 25% of the Certificate Balance; providedor (v) Any assignment by the Servicer to a delegate of its duties or rights under this Agreement, howeverexcept as specifically permitted hereunder, that or any attempt to make such an assignment; or (vi) The entry of a decree or order for relief by a court having jurisdiction in respect of the occurrence Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy insolvency or similar law, or appointing a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any event set forth such decree or order unstayed and in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) effect for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure 60 consecutive days; or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt vii)The commencement by the Servicer of notice a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an Exchange Note Servicer Event assignment for the benefit of Defaultcreditors, all authority and power of or the failure by the Servicer under this 2021-A Servicing Supplement, whether with respect generally to the Notes, the Certificates, the Trust Estate pay its debts as such debts become due or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer admit in writing its electronic records relating inability to pay its debts as they become due, or the 2021-A Leases and 2021-A Vehicles to taking of corporate action by the Successor Servicer in such electronic form as furtherance of any of the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer foregoing; or (or by viii)The occurrence of a Trigger Event if the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesServicer.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 17%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: September 2008 - August 2009 6.50 % September 2009 - August 2010 7.00 % September 2010 - August 2011 7.50 % September 2011 and thereafter 8.00 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Swap Provider of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-3)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Distribution Account or other applicable account in accordance with the terms of the Indenture within two Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee any proceeds or payment and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that deposited hereunder, which failure continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failureunremedied;
(ii) any so long as the Servicer is the Servicer hereunder, failure by on the part of the Servicer to duly pay to the Trustee on the date when due in accordance with the terms hereof, any payment required to be made by the Seller pursuant to Article 4 hereof;
(iii) failure on the part of the Servicer to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Seller or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer by the Indenture Trustee;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made in the 2021-A this Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to the 2021-A Servicing Agreement hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Servicing Agreement will be an Exchange Note deemed to be "material" only if it affects the Noteholders, the enforceability of the Indenture or of the Notes; and provided, further, that a material breach of any representation or warranty made by the Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default in this Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that failure the Servicer repurchases such Lease and Equipment in accordance with this Servicing Agreement;
(v) the entry by a court having jurisdiction of (A) a decree or delay was caused by Force Majeure. Upon order for relief in respect of the occurrence Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations decree or order for relief or any such other decree or order unstayed and in effect for a timely manner in accordance with the terms period of the Basic Servicing Agreement and this 2021-A Servicing Supplement.60 consecutive days; or
(bvi) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt commencement by the Servicer of notice a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of an Exchange Note Servicer Event any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of Default, all authority and power a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under this 2021-A Servicing Supplementany applicable federal or state bankruptcy, whether with respect insolvency, reorganization, or other similar law or to the Notescommencement of any bankruptcy or insolvency case or proceeding against it, or the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration filing by it of all cash amounts that shall at a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the time be held consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the outgoing Servicer for depositto pay its debts generally as they become due, or have been deposited the taking of corporate action by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in furtherance of any such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesaction.
Appears in 1 contract
Samples: Servicing Agreement (Charter Equipment Lease 1998-1 LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any In case one or more of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement Default shall not apply occur and be continuing, that is to the 2021-A Exchange Note or to this 2021-A Servicing Supplementsay:
(i1) any failure by the Servicer to deliver deposit into the Collection Account or the Distribution Account or any failure by Servicer to the Indenture Trustee make any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date required payments therefrom; or
(2) any failure on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the material covenants or agreements on the part of the Servicer, contained in any Basic Document to which it is a party, which continues unremedied for a period of 30 days (or, in the 2021-A Servicing Agreementcase of payment of insurance premiums, for a period of 15 days) after the date on which failure written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any other party hereto or to the Servicer (with copy to each other party hereto), by Holders of 25% of the Percentage Interests of the Notes or the Trust Certificates; or
(3) any breach on the part of the Servicer of any representation or warranty contained in any Basic Document to which it is a party that materially and adversely affects the rights interests of holders any of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, parties hereto or any Securityholder and which continues unremedied for 90 a period of 30 days after written the date on which notice thereof is of such breach, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty other party hereto or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer (with copy to each other party hereto), by the Indenture TrusteeInitial Noteholder or Holders of 25% of the Percentage Interests (as defined in the Indenture) of the Notes; or
(iv4) there shall have been commenced before a court or agency or supervisory authority having jurisdiction in the occurrence premises an involuntary proceeding against the Servicer under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of an Insolvency Event with respect to a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the Servicer; providedwinding-up or liquidation of its affairs, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will which action shall not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) have been dismissed for a period of 120 days will not constitute an Exchange Note 60 days; or
(5) the Servicer Event shall consent to the appointment of Default if that failure a conservator, receiver, liquidator, trustee or delay was caused by Force Majeure. Upon similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its property; or
(6) the occurrence Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any such eventapplicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; or
(7) Reserved; or
(8) the Servicer will not be relieved from using all commercially reasonable efforts or the Loan Originator fails to perform comply with any of its obligations financial covenants set forth in Section 7.02; or
(9) a timely manner in accordance with Change of Control of the terms Servicer; or
(10) so long as the Servicer or the Loan Originator is an Affiliate of either of the Depositor or the Issuer and any "event of default' by any such party occurs under any of the Basic Servicing Agreement and this 2021-A Servicing SupplementDocuments.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of DefaultThen, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trusteeand in each and every such case, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such so long as a Servicer Event of Default and its consequences. Upon any such waivershall not have been remedied, the applicable Exchange Note Indenture Trustee or the Majority Noteholders, by notice in writing to the Servicer Event may, in addition to whatever rights such Person may have at law or in equity to damages, including injunctive relief and specific performance, may terminate all the rights and obligations of Default will cease the Servicer under this Agreement and in and to existthe Loans and the proceeds thereof, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Upon receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Loans or otherwise, shall, without further actionsubject to Section 9.02 hereof, pass to and be vested in a successor servicer, and the Indenture Trustee or such Successor Servicer as may be appointed pursuant successor servicer is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Sectionpurposes of such notice of termination, including, but not limited to, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one transfer and endorsement or assignment of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-ServicerLoans and related documents. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts to each Collection Account or thereafter received with respect to the 2021Loans.
(c) Upon the occurrence of (i) an Event of Default or Default under any of the Basic Documents, (ii) a Servicer Event of Default under this Agreement, (iii) a Rapid Amortization Trigger or (iv) a determination, reasonably made by the Initial Noteholder, that an event has occurred that shall materially impair the ability of the Servicer to service and administer the Loans in accordance with the terms and provisions set forth in the Servicing Addendum (each, a "Term Event"), the Servicer's right to service the Loans pursuant to the terms of this Agreement shall be in effect for an initial period commencing on the date on which such Term Event occurred and shall automatically terminate at 5:00 p.m. (New York City time), on the last business day of the calendar month in which such Term Event occurred (the "Initial Term"). Thereafter, the Initial Term shall be extendible in the sole discretion of the Initial Noteholder by written notice (each, a "Servicer Extension Notice") of the Initial Noteholder for successive one-A Leases and 2021-A Vehicles and all information or documents month terms (each such term ending at 5:00 p.m. (New York City time), on the last business day of the related month). Following a Term Event, the Servicer hereby agrees that the Indenture Trustee or such Successor Servicer may require, shall be bound for the duration of the Initial Term and the Successor term covered by any such Servicer shall not be liable if it cannot perform due Extension Notice to act as the failure Servicer pursuant to this Agreement. Following a Term Event, the Servicer agrees that if, as of 3:00 p.m. (New York City time) on the predecessor Servicer to so deliver. In additionlast business day of any month, the Servicer shall transfer its electronic records relating not have received a Servicer Extension Notice from the Initial Noteholder, the Servicer shall give written notice of such non-receipt to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.Initial Noteholder by
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212013-A B Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212013-A B Exchange Note or to this 20212013-A B Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212013-A B Exchange Note under the Basic Servicing Agreement or this 20212013-A B Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212013-A B Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212013-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212013-A B Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212013-A B Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212013-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212013-A B Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212013-A B Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212013-A B Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212013-A B Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212013-A B Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212013-A B Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212013-A B Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212013-A B Bank Accounts or thereafter received with respect to the 20212013-A B Leases and 20212013-A B Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212013-A B Leases and 20212013-A B Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2013-B Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2013-B Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2013-B)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212015-A B Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212015-A B Exchange Note or to this 20212015-A B Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212015-A B Exchange Note under the Basic Servicing Agreement or this 20212015-A B Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212015-A B Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212015-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212015-A B Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212015-A B Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212015-A B Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212015-A B Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212015-A B Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212015-A B Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212015-A B Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212015-A B Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212015-A B Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212015-A B Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212015-A B Bank Accounts or thereafter received with respect to the 20212015-A B Leases and 20212015-A B Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212015-A B Leases and 20212015-A B Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2015-B Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2015-B Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2015-B)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an (“Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) any (A) The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; provided, however, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to “below average” or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant’s report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of ten days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Mortgage Loans, which failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Sxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that ’s ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer’s ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised promptly give telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys’ fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an “Extension Notice”) for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a “Servicer Term of Service”) until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Periodic Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer’s property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any “event of default” under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, the Cumulative Loan Loss Percentage exceeds the following percentages on any Payment Date during the following periods: December 2003 through November 2005 1.70 % December 2005 through November 2006 2.50 % December 2006 through November 2007 3.20 % December 2007 and thereafter 4.50 %
(x) if the total stockholders’ equity of the Master Servicer, as determined by the Master Servicer’s independent accountants in accordance with generally accepted accounting principles, shall be less than $60 million;
(xi) if the total on- or off-A Servicing Agreement or any certificate, report or other writing delivered pursuant balance sheet financing available to the 2021-A Servicing Agreement Master Servicer shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteeless than $400 million; or
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2003-3)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made; provided, which failure materially -------- however, that the breach of any representation or warranty made by the ------- Originator or Servicer in this Assignment and adversely Servicing Agreement will be deemed to be "material" only if it affects the rights of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders orInsurer or the enforceability of the Indenture or of the Notes; and provided, in the event further, that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer a material breach of any representation or -------- ------- warranty made by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event Originator in this Assignment and Servicing Agreement with respect to any of the Servicer; providedLeases or the Equipment subject thereto will not constitute a Servicer Event of Default if the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) an involuntary petition or proceeding shall be filed (A) in respect of the Servicer under any applicable federal or state bankruptcy, howeverinsolvency, that reorganization, or other similar law or (B) seeking a decree or order adjudging the Servicer bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and either (1) such petition shall not have been dismissed within a period of 60 consecutive days or (2) any such order for relief or decree shall be entered in any such proceeding, or any such receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be appointed;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or the taking of corporate action by the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence existence of any such eventcondition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds or payment Lease Payments and any Defaulted Lease Payments) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited hereunder;
(ii) so long as the Originator is the Servicer hereunder, failure on the part of the Originator to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Seller pursuant to Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to duly observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for a period of 90 days after the earlier of (A) the date it first becomes known to any officer of the Originator, the Seller or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the holders of not less than 25% of the voting rights of such series of Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease [and Equipment] in accordance with this Assignment and Servicing Agreement or to the extent the Originator does not purchase such Lease, if the Seller purchases such Lease in accordance with this Assignment and Servicing Agreement.
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding [$5,000,000], or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more persons to cause) more than [$5,000,000] of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance; or
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of [$5,000,000] and any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer judgments (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basisdecrees or orders) upon presentation has remained unsatisfied and in effect for any period of reasonable documentation 60 consecutive days without a stay of such costs and expensesexecution.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an shall constitute a Servicer Event of Default on the part of the Servicer (each a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”):
(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer to deliver make any required Monthly Advance; or (ii) any other failure by the Servicer to deposit in the Indenture Trustee Custodial Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of one Business Days Day after the earlier of the date on upon which (A) written notice of such failure is shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer by any Holder of a Regular Certificate evidencing at least 25% of the Servicer has actual knowledge of such failureVoting Rights;
(iib) any failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of 30 days, or the failure by the Servicer duly to observe or perform, in any material respect, any other covenants, obligations or agreements of the Servicer as set forth in this Agreement, which failure continues unremedied for a period of 30 days, after the date (i) on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Trustee or by any Holder of a Regular Certificate evidencing at least 25% of the Voting Rights or (ii) actual knowledge of such failure by a Servicing Officer of the Servicer;
(c) failure by the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer set forth in the 2021-A Servicing this Agreement, which failure materially including, but not limited to, breach by the Servicer of any one or more of the representations, warranties and adversely affects covenants of the rights of holders of interests Servicer contained in the 2021-A Exchange NoteSection 3.5, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;
(iiid) any representation, warranty or statement of failure by the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove maintain its license to be incorrect do business in any material respect when madejurisdiction where the Mortgaged Property is located if such license is required;
(e) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, which failure materially readjustment of debt, including bankruptcy, marshaling of assets and adversely affects liabilities or similar proceedings, or for the rights winding-up or liquidation of holders of interests in the 2021-A Exchange Noteits affairs, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to shall have been entered against the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth and such decree or order shall have remained in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool force undischarged or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) unstayed for a period of 120 days will not constitute an Exchange Note 60 days;
(f) the Servicer Event shall consent to the appointment of Default if that failure a conservator or delay was caused by Force Majeure. Upon receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the occurrence Servicer or of or relating to all or substantially all of its assets;
(g) the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or cease its normal business operations for three Business Days; and
(h) the aggregate amount of Cumulative Realized Losses incurred since the Cut-off Date through the last day of the related Collection Period divided by the sum of (i) aggregate Scheduled Principal Balance of the Closing Date Mortgage Loans as of the Cut-off Date and (ii) the Original Pre-Funded Amount, exceeds the applicable percentages set forth below with respect to such event, Distribution Date: Distribution Date Occurring In Percentage July 2007-June 2008 3.00% for the first month plus an additional 1/12th of 2.00% for each month thereafter July 2008-June 2009 5.00% for the first month plus an additional 1/12th of 1.50% for each month thereafter July 2009-June 2010 6.50% for the first month plus an additional 1/12th of 1.00% for each month thereafter July 2010-June 2011 7.50% for the first month plus an additional 1/12th of 0.75% for each month thereafter July 2011 and thereafter 8.25% If the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in obtains knowledge of a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder Servicer shall promptly notify the Trustee and the Depositor. So long as a Servicer Event of Default shall not have been remedied within the applicable grace period, (which for purposes x) with respect solely to clause (a)(i) above, if such Monthly Advance is not made by 2:00 P.M., New York time, on the Business Day immediately following the Servicer Remittance Date, the Depositor or the Trustee may terminate by notice in writing to the Servicer all of the rights and obligations of the Servicer under this Section shall be Agreement, and the Indenture Trustee, acting or a successor servicer appointed in accordance with Section 6.5, shall immediately make such Monthly Advance and assume, pursuant to Section 6.5, the duties of a successor Servicer, and (y) in the case of (a)(ii) through (h) above, the Depositor or the Trustee may, or at the written direction of 66 2/3% of the Holders of each Class of Regular Certificates evidencing Percentage Interests aggregating not less than 66% shall, by notice then given in writing to the Outstanding Amount Servicer (and to the Trustee if given by Holders of Certificates), terminate all of the Controlling Class) may waive any such rights and obligations of the Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No Any such waiver will extend notice to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Servicer shall also be given to each Rating Agency, the Depositor and the Seller. Upon receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be successor appointed pursuant to Section 6.5. Upon written request from the terms Trustee, the Servicer shall, at its expense, prepare, execute and deliver to the successor entity designated by the Trustee any and all documents and other instruments, place in such successor’s possession all Mortgage Files, and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including but not limited to the transfer and endorsement or assignment of the Basic Servicing Agreement. If Mortgage Loans and related documents, at the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer’s sole expense. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, to the Custodial Account or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Escrow Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesMortgage Loans.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First NLC Trust 2005-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to Certificateholders any proceeds or payment payments received from a Customer or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Trust and Security Agreement or and this 2021-A Servicing Supplement Agreement that continues unremedied for ten until 10:00 a.m. (Minneapolis time) on the following Business Days after Day; provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any Any failure by the Servicer to deliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m., Minneapolis time, the following Business Day; provided, however, that if the Servicer has not delivered the Monthly Servicer's Report by 12:00 noon (Minneapolis time) on the Determination Date, the Trustee shall give the Servicer notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iii) Any failure by the Servicer to make a Servicer Advance pursuant to Section 3.04 hereof or to deposit any Removal Price received by it that continues unremedied until 10:00 a.m. (Minneapolis time) the following Business Day; provided, however, that if the Servicer has not made the Servicer Advance or deposited any Removal Price received by it by 12:00 noon (Minneapolis time) on the Determination Date and the Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Removal Price is to be paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) Any failure on the part of the Servicer in its capacity as such duly to observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made set forth in the 2021-A Servicing this Agreement or the Trust and Security Agreement, as the case may be, or if any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when madeincorrect, which failure or breach (A) materially and adversely affects or could affect the interest or rights of holders of interests in the 2021-A Exchange NoteMBIA, the Noteholders orTrustee, in or the event that Certificates are sold to unaffiliated third parties, the Certificateholders, Certificateholders and which failure (B) continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach or written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture Trustee, MBIA, the Transferor, or the Back-up Servicer, or to a Servicing Officer of the Servicer, MBIA and the Trustee by Certificateholders representing not less than 25% of the Outstanding Principal Amount of all Series; or
(ivv) Any assignment by the Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vi) The entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer (or any entity with which the Servicer has merged) in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy insolvency or similar law, or appointing a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer (or any entity with which the Servicer has merged) for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer (or any entity with which the Servicer has merged) and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(vii) The commencement by the Servicer (or any entity with which the Servicer has merged) of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer (or any entity with which the Servicer has merged) to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer (or any entity with which the Servicer has merged) or relating to a substantial part of its property, or the making by the Servicer (or any entity with which the Servicer has merged) of an assignment for the benefit of creditors, or the failure by the Servicer (or any entity with which the Servicer has merged) generally to pay its debts as such debts become due or if the Servicer (or any entity with which the Servicer has merged) shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer (or any entity with which the Servicer has merged) in furtherance of any of the foregoing; or
(viii) The occurrence of an Insolvency a Trigger Event with respect to if the initial Servicer is the Servicer; provided, however, that the occurrence of any event set forth in clauses .
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only with respect to shall not have been remedied within the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay period set forth in or failure of performance referred to under clause (i), (ii), (iii), (iv) or (iiivi) for above, as applicable, or if a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure described in (v), (vii) or delay was caused by Force Majeure. Upon the occurrence of any such event(viii) above occurs, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of MBIA shall, or if there has been an MBIA Default or Termination, the Holders of Trustee, the Outstanding Amount Transferor, or the Back-up Servicer may and shall at the request of the Controlling ClassHolders, by notice (the "Servicer Termination Notice") then given in writing to the Servicer and the Back-up Servicer, terminate all, but not less than all, of the rights and obligations of the Servicer under this Agreement.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after Upon the occurrence of an Exchange Note Servicer Event of Defaulta Trigger Event, the 2021-A Exchange Noteholder (which for purposes Trustee shall, at the direction of this Section shall be MBIA, or if there has been an MBIA Default or Termination, the Indenture Trustee, acting the Transferor, or the Back-up Servicer may and shall at the written direction of 66 2/3% of the Holders of the Outstanding Amount request of the Controlling Class) may waive any such Holders, by Servicer Event Termination Notice then given in writing to the Servicer and the Back-up Servicer, terminate all but not less than all of Default the rights and its consequences. Upon any such waiver, obligations of the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Certificates or the Certificates, the Trust Estate Lease Contracts or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.to
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 17%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: December 2008 – November 2009 6.50% December 2009 - November 2010 7.00% December 2010 - November 2011 7.50% December 2011 and thereafter 8.00%
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Swap Provider of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-4)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an (“Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) any (A) The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; provided, however, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to “below average” or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant’s report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of ten days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Mortgage Loans, which failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Xxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that ’s ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer’s ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised give immediate telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys’ fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an “Extension Notice”) for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a “Servicer Term of Service”) until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to Noteholders any proceeds or payment Policy Proceeds in respect of the Trust Estate required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Amended and Restated Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied until 1:00 P.M., New York time, on the second Business Day following the Payment Date; provided, however, that the Indenture Trustee, upon receiving actual knowledge of such failure, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) Any failure by the Servicer to deliver a Monthly Servicing Report pursuant to Section 6.01 hereof that continues unremedied until 1:00 P.M., New York time, the following Business Day; provided, however, that if the Servicer has not delivered the Monthly Servicing Report by 5:00 P.M., New York time, on the Submission Date, the Indenture Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iii) Any failure on the part of the Servicer duly to observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the Amended and Restated Indenture, as the case may be, or if any representation or warranty of the Servicer set forth in Section 3.02 hereof shall prove to be incorrect, which failure or breach (A) is likely to have or has had a material adverse effect on the interests or rights of the Indenture Trustee or the Noteholders and (B) continues unremedied for ten Business Days a period of 30 days after the earlier of the date on which (Ax) the Servicer becomes aware of such failure or breach or (y) written notice of such failure is or breach requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe Issuer, or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by and the Indenture Trustee;
(iii) any representation, warranty or statement Trustee by Holders of Notes representing not less than 25% of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture TrusteeOutstanding Principal Balance; or
(iv) Any assignment by the occurrence Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(v) The entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(vi) The commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an Insolvency Event with respect assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(vii) The Servicer (if PWCC is then the Servicer) fails, within 45 days after entry, to pay, bond, or otherwise discharge any judgment in excess of $250,000, unless such judgment is then stayed on appeal; provided, however, that or
(viii) The Servicer (if PWCC is then the occurrence Servicer) defaults in the payment of any event set forth principal or interest due in clauses excess of $250,000 in the aggregate and such default is not waived or cured within any applicable grace period; or
(iix) through Any Event of Default under the Indenture occurs that is not waived and that is not attributable solely to an act or omission of the Indenture Trustee in its capacity as Indenture Trustee under the Indenture.
(iiib) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only with respect to shall not have been remedied within the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay period set forth in or failure of performance referred to under clause (i), (ii) or (iii) for above, as applicable, or if a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure described in (iv), (vii) or delay was caused by Force Majeure. Upon the occurrence of any such event(viii) above occurs, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in Issuer may, or the Indenture Trustee shall upon instruction by the Majority Noteholders, or if a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of DefaultDefault described in (v) or (vi) above occurs, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture TrusteeTrustee shall upon receiving written notice thereof, acting at by notice (the written direction of 66 2/3% "Servicer Default Notice") then given in writing to the Servicer terminate all, but not less than all, of the Holders rights and obligations of the Outstanding Amount of the Controlling ClassServicer under this Agreement.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice a Servicer Default Notice and the assumption of an Exchange Note Servicer Event of Defaultduties by the successor Servicer, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Policies or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms Section 8.03 hereof. The Indenture Trustee shall not be deemed to have actual knowledge of the Basic Servicing Agreement. If a Servicer Event of Default (other than under paragraphs (i) and (ii) above), until a Responsible Officer of the Indenture Trustee shall become Successor have received written notice or actual knowledge thereof. In addition to any other amounts that are then payable to the Servicer pursuant to under this SectionAgreement, the Indenture Trustee Servicer shall be entitled to appoint as sub-receive reimbursements for any unreimbursed payments of premiums made during the period or any other expenses previously approved by the Noteholders prior to the delivery of a Servicer any one of its Affiliates or agents; provided that Termination Notice pursuant to this Section 7.01 which terminates the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities obligations and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenseshereunder.
Appears in 1 contract
Samples: Contribution, Sale and Servicing Agreement (Point West Capital Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth -------- ------- representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of -------- ------- any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment or substitutes a Substitute Lease therefor in accordance with this Assignment and Servicing Agreement;
(v) an involuntary petition or proceeding shall be filed (A) in respect of the Servicer under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) seeking a decree or order adjudging the Servicer bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and either (1) such petition shall not have been dismissed within a period of 60 consecutive days or (2) any such order for relief or decree shall be entered in any such proceeding, or any such receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be appointed;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other recourse obligations of the Servicer exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power recourse obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-performance;
(viii) a final judgment or judgments (or decrees or orders) against the Servicer for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an shall constitute a Servicer Event of Default (a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to under this 2021-A Servicing SupplementAgreement:
(ia) any failure by the Master Servicer to deliver to the Indenture Trustee make any proceeds or payment payments required to be so delivered with respect to made by it hereunder on the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date day on which (A) notice of such payment is required to be made and such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failurecontinues for three Business Days;
(iib) any failure by on the part of the Master Servicer to duly observe or perform in any material respect any other of its covenants or agreements in of the 2021-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and Master Servicer contained herein which continues unremedied for 90 a period of 30 days after the earlier of (i) Master Servicer’s knowledge thereof and (ii) receipt by Master Servicer of written notice thereof is given to the Servicer by the Indenture Trusteefrom Lender or Administrator;
(iiic) the delegation by the Master Servicer of its duties hereunder;
(d) any representation, warranty or statement certification made by the Master Servicer herein proves to have been incorrect when made;
(e) so long as Baldor shall be the Master Servicer the Consolidated Tangible Net Worth of Baldor shall be less than or equal to 60% of Baldor’s current Consolidated Net Worth;
(f) an Event of Bankruptcy shall have occurred with respect to the Master Servicer made or any Originator;
(g) a final judgment or judgments for the payment of money in excess of $50,000 in the 2021-A Servicing Agreement aggregate shall have been rendered against Borrower or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests $5,000,000 in the 2021-A Exchange Noteaggregate shall have been rendered against Baldor and the same shall have remained unsatisfied and in effect, the Noteholders orwithout stay of execution, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of 30 consecutive days after written notice thereof is given to the Servicer by the Indenture Trusteeperiod for appellate review shall have elapsed; or
(ivh) the occurrence Baldor shall fail to pay any Debt in excess of an Insolvency Event with respect to the Servicer; provided$5,000,000 when due, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will or a default shall have occurred and be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default continuing with respect to any other Reference Pool such Debt which default results in, or would permit, the Revolving Facility Poolacceleration of such Debt. Notwithstanding At any time during the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence continuance of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by Administrator may, in its sole discretion, notify Master Servicer in writing of the 2021-A Exchange Noteholder thereunder revocation of its appointment as Master Servicer hereunder. Upon revocation of Master Servicer’s appointment hereunder, Administrator shall be exercised by appoint a successor Master Servicer. Master Servicer agrees that upon receipt of written notification from Administrator of the Indenture Trusteerevocation of Master Servicer’s appointment as Master Servicer hereunder, acting at Master Servicer shall upon the written direction request of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder Administrator (which for purposes request may be contained in the notification of this Section shall be revocation) (i) notify all Obligors under the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling ClassReceivables to make payment thereof to a bank account(s) may waive any or post office box designated by Administrator and specified in such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to existnotice, and will be deemed (ii) pay to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent Administrator (or other event or impair any right consequent thereon.
(dits designee) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, immediately all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be Collections then held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received by Master Servicer or any Originator of Receivables, together with respect all other payment obligations of the Master Servicer hereunder owing to Lender or Administrator. Master Servicer shall, at its sole cost and expense, cooperate with and assist the 2021-A Leases successor Master Servicer (including, without limitation, providing access to, and 2021-A Vehicles transferring, all Receivable Files and all information or documents that records (including data-processing records) relating thereto (which shall be held in trust for the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure benefit of the predecessor parties hereto in accordance with their respective interests)) and allowing the successor Master Servicer to so deliveruse all licenses, hardware or software necessary or desirable to collect the Receivables). In addition, the Servicer shall transfer its electronic records relating Baldor irrevocably agrees to the 2021-A Leases and 2021-A Vehicles act (if requested to the Successor Servicer in such electronic form do so) as the Successor Servicer may reasonably request. All Transition Costs shall be paid by data-processing agent for the outgoing successor Master Servicer (or by in substantially the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of same manner as Baldor conducted such costs and expensesdata-processing functions while it acted as Master Servicer).
Appears in 1 contract
Samples: Loan Agreement (Baldor Electric Co)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Account;
(ix) if on any Payment Date, commencing in June 2001, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Account, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company Stockholders' Equity Trigger; and
(xi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A 20[__]-[_] Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A 20[__]-[_] Exchange Note or to this 2021-A 20[__]-[_] Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A 20[__]-[_] Exchange Note under the Basic Servicing Agreement or this 2021-A 20[__]-[_] Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A 20[__]-[_] Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 2021-A 20[__]-[_] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A 20[__]-[_] Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A 20[__]-[_] Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A 20[__]-[_] Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A 20[__]-[_] Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A 20[__]-[_] Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A 20[__]-[_] Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A 20[__]-[_] Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount [of the Controlling Class].
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A 20[__]-[_] Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount [of the Controlling Class]) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A 20[__]-[_] Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionSection 7.01(a), the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A 20[__]-[_] Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A 20[__]-[_] Bank Accounts or thereafter received with respect to the 2021-A 20[__]-[_] Leases and 2021-A 20[__]-[_] Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A 20[__]-[_] Leases and 2021-A 20[__]-[_] Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders [of the Controlling Class] (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 20[__]-[_] Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 20[__]-[_] Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder, the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder, the responsibilities of the Servicer set forth in Sections 3.05 and 3.10, or the obligations with respect to the payment or reimbursement of fees, expenses or other amounts (including indemnities other than those resulting from the actions of the Indenture Trustee as successor Servicer) of the Trustees or the Asset Representations Reviewer, the fees and expenses of the Trustees’ attorneys, or the Asset Representations Reviewer’s attorneys, the fees and expenses of any custodian and the fees and expenses of independent accountants or expenses incurred in connection with distributions and reports to the Noteholders. ARTICLE EIGHT
Appears in 1 contract
Samples: Servicing Supplement (Daimler Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of sixty (60) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Distribution Date the Rolling Six Month Delinquency Rate exceeds 12.75% for Mortgage Loan Pool I and 12.75% for Mortgage Loan Pool II;
(ix) if on any Distribution Date, commencing in December 1999, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans in Pool I and 1.75% for the Mortgage Loans in Pool II, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Distribution Date occurring before December 1, 1999, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Distribution Date on or after December 1, 1999 and before December 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Distribution Date on or after December 1, 2000 and before December 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Distribution Date on or after December 1, 2001 and before December 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Distribution Date on or after December 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event with respect to of Default under the ServicerIndenture; provided, however, that the occurrence of any event or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementSection 8.04 hereof.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Distribution Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of under this Section shall be Agreement and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any In case one or more of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement Default shall not apply occur and be continuing, that is to the 2021-A Exchange Note or to this 2021-A Servicing Supplementsay:
(i1) any failure by the Servicer to deliver deposit into the Collection Account or the Distribution Account or any failure by Servicer to the Indenture Trustee make any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date required payments therefrom; or
(2) any failure on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the material covenants or agreements on the part of the Servicer, contained in any Basic Document to which it is a party, which continues unremedied for a period of 30 days (or, in the 2021-A Servicing Agreementcase of payment of insurance premiums, for a period of 15 days) after the date on which failure written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any other party hereto or to the Servicer (with copy to each other party hereto), by Holders of 25% of the Percentage Interests of the Notes or the Trust Certificates; or
(3) any breach on the part of the Servicer of any representation or warranty contained in any Basic Document to which it is a party that materially and adversely affects the rights interests of holders any of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, parties hereto or any Securityholder and which continues unremedied for 90 a period of 30 days after written the date on which notice thereof is of such breach, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty other party hereto or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer (with copy to each other party hereto), by the Indenture TrusteeInitial Noteholder or Holders of 25% of the Percentage Interests (as defined in the Indenture) of the Notes; or
(iv4) there shall have been commenced before a court or agency or supervisory authority having jurisdiction in the occurrence premises an involuntary proceeding against the Servicer under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of an Insolvency Event with respect to a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the Servicer; providedwinding-up or liquidation of its affairs, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will which action shall not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) have been dismissed for a period of 120 days will not constitute an Exchange Note 60 days; or
(5) the Servicer Event shall consent to the appointment of Default if that failure a conservator, receiver, liquidator, trustee or delay was caused by Force Majeure. Upon similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its property; or
(6) the occurrence Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any such eventapplicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in furtherance of the foregoing; or
(7) Reserved; or
(8) the Servicer will not be relieved from using all commercially reasonable efforts or the Loan Originator fails to perform comply with any of its obligations financial covenants set forth in Section 7.02; or
(9) a timely manner in accordance with Change of Control of the terms Servicer; or
(10) so long as the Servicer or the Loan Originator is an Affiliate of either of the Depositor or the Issuer and any "event of default' by any such party occurs under any of the Basic Servicing Agreement and this 2021-A Servicing SupplementDocuments.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of DefaultThen, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trusteeand in each and every such case, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such so long as a Servicer Event of Default and its consequences. Upon any such waivershall not have been remedied, the applicable Exchange Note Indenture Trustee or the Majority Noteholders, by notice in writing to the Servicer Event may, in addition to whatever rights such Person may have at law or in equity to damages, including injunctive relief and specific performance, may terminate all the rights and obligations of Default will cease the Servicer under this Agreement and in and to existthe Loans and the proceeds thereof, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Upon receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Loans or otherwise, shall, without further actionsubject to Section 9.02 hereof, pass to and be vested in a successor servicer, and the Indenture Trustee or such Successor Servicer as may be appointed pursuant successor servicer is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Sectionpurposes of such notice of termination, including, but not limited to, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one transfer and endorsement or assignment of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-ServicerLoans and related documents. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts to each Collection Account or thereafter received with respect to the 2021Loans.
(c) Upon the occurrence of (i) an Event of Default or Default under any of the Basic Documents, (ii) a Servicer Event of Default under this Agreement, (iii) a Rapid Amortization Trigger or (iv) a determination, reasonably made by the Initial Noteholder, that an event has occurred that shall materially impair the ability of the Servicer to service and administer the Loans in accordance with the terms and provisions set forth in the Servicing Addendum (each, a "Term Event"), the Servicer's right to service the Loans pursuant to the terms of this Agreement shall be in effect for an initial period commencing on the date on which such Term Event occurred and shall automatically terminate at 5:00 p.m. (New York City time), on the last business day of the calendar month in which such Term Event occurred (the "Initial Term"). Thereafter, the Initial Term shall be extendible in the sole discretion of the Initial Noteholder by written notice (each, a "Servicer Extension Notice") of the Initial Noteholder for successive one-A Leases and 2021-A Vehicles and all information or documents month terms (each such term ending at 5:00 p.m. (New York City time), on the last business day of the related month). Following a Term Event, the Servicer hereby agrees that the Indenture Trustee or such Successor Servicer may require, shall be bound for the duration of the Initial Term and the Successor term covered by any such Servicer Extension Notice to act as the Servicer pursuant to this Agreement. Following a Term Event, the Servicer agrees that if, as of 3:00 p.m. (New York City time) on the last business day of any month, the Servicer shall not be liable if it cannot perform due have received a Servicer Extension Notice from the Initial Noteholder, the Servicer shall give written notice of such non-receipt to the Initial Noteholder by 4:00 p.m. (New York City time). Following a Term Event, the failure of the predecessor Initial Noteholder to deliver a Servicer to so deliverExtension Notice by 5:00 p.m. (New York City time) shall result in the automatic and immediate termination of the Servicer (the "Termination Date"). In additionNotwithstanding these time frames, the Servicer and the Initial Noteholder shall comply with all applicable laws in connection with such transfer its electronic records relating and the Servicer shall continue to service the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation Loans until completion of such costs and expensestransfer.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an (“Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a”) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(iA) any The failure by the Servicer to deliver to the Indenture Trustee make any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that Monthly Advance which continues unremedied for ten a period of one (1) Business Days Day after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee it was due; or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any other failure by the Servicer to deposit in the Collection Account or the Distribution Account any deposit required to be made under the terms of this Agreement which continues unremedied for a period of two (2) Business Days after such deposit was due (except with respect to remittances into the Distribution Account required pursuant to Section 3.03(i) hereof with respect to which only a one (1) Business Day grace period shall apply);
(A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Master Servicer, the Securities Administrator or the Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Trustee, by any Holder with Certificates evidencing Voting Interests of at least 25%; provided, however, that in the case of a failure that cannot be cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator and the Trustee that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Certificates attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Certificates on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Certificates to “below average” or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant’s report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of fifteen days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer; or
(ivix) the occurrence of an Insolvency Event with respect failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Servicer; providedMortgage Loans, howeverwhich failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, that requiring the occurrence of any event set forth in clauses (i) through (iii) with respect same to be remedied, shall have been given to the 2021-A Reference Pool will be an Exchange Note Servicer by the Master Servicer;
(b) then, and in each and every such case, so long as a Servicer Event of Default only shall not have been remedied, (x) with respect solely to clause (a)(i)(A) above, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Trustee or of the Securities Administrator of such failure, the Master Servicer shall give immediate telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 8.02 shall immediately make such Monthly Advance prior to the 2021-A Reference Pool distribution of funds on the related Distribution Date and will not be assume, pursuant to Section 8.02, the duties of a Successor Servicer Event Default with respect to any other Reference Pool or and (y) in the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure case of performance referred to under clause (i), a)(i)(B) and (ii) or through (iiiix) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such eventabove, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of DefaultTrustee shall, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount Offered Certificates evidencing not less than 51% of all of the Controlling Class.
Voting Rights by notice then given in writing to the Servicer or the Master Servicer (c) In accordance with Section 8.05 and to the Trustee if given by Holders of Certificates), terminate all of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% rights and obligations of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No Any such waiver will extend notice to any subsequent or other event or impair any right consequent thereon.
(d) the Servicer shall also be given to each Rating Agency and the Seller. On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Certificates or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 8.01; and, without limitation, the Indenture Trustee shall be entitled Successor Servicer is hereby authorized and empowered to appoint execute and deliver, on behalf of the Servicer, as subattorney-Servicer in-fact or otherwise, any one of its Affiliates and all documents and other instruments, and to do or agents; provided that accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture TrusteeSuccessor Servicer, the Owner Master Servicer, the Securities Administrator and the Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys’ fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 8.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to distributions to Certificateholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Class BIO Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Class BIO Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 7.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period shall be extended by the Master Servicer (an “Extension Notice”) for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a “Servicer Term of Service”) until such time as the Master Servicer, the Securities Administrator and the Trustee receives written direction from the Holders of Certificates evidencing at least 51% of the Voting Rights not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Certificateholders from directing the Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 8.01 (c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2004-4)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an “Exchange Note shall constitute a Servicer Event of Default” with respect to Default on the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) part of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementServicer:
(ia) any failure by the Servicer to deliver remit to the Indenture Trustee Master Servicer any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing Agreement or terms of this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failureAgreement;
(iib) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer set forth in the 2021-A Servicing this Agreement, which failure materially including, but not limited to, breach by the Servicer of any one or more of the representations, warranties and adversely affects covenants of the rights of holders of interests Servicer as set forth in the 2021-A Exchange NoteSection 3.5, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer or the Indenture Trustee;
(iiic) any representation, warranty or statement of failure by the Servicer made to maintain its license to do business in any jurisdiction where the 2021Mortgaged Property is located if such license is required;
(d) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, including bankruptcy, marshaling of assets and liabilities or similar proceedings, or for the winding-A Servicing Agreement up or any certificateliquidation of its affairs, report shall have been entered against the Servicer and such decree or other writing delivered pursuant order shall have remained in force undischarged or unstayed for a period of 60 days;
(e) the Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshaling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of its assets;
(f) the Indenture TrusteeServicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or cease its normal business operations for three Business Days;
(g) the Servicer ceases to meet the Servicer eligibility qualifications of Xxxxxx Xxx or Xxxxxxx Mac; or
(ivh) the occurrence of an Insolvency Event with respect Servicer attempts to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect assign its right to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect servicing compensation hereunder or to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool assign this Agreement or the Revolving Facility Poolservicing responsibilities hereunder or to delegate its duties hereunder or any portion thereof in violation of Section 5.10. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, If the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in obtains knowledge of a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes Servicer shall promptly notify the Master Servicer and the Indenture Trustee. In each and every such case, so long as a Servicer Event of this Section Default shall be not have been remedied, in addition to whatever rights the Master Servicer or the Indenture Trustee may have at law or equity to damages, including injunctive relief and specific performance, the Master Servicer or the Indenture Trustee, acting at by notice in writing to the written direction of 66 2/3% Servicer, may terminate all the rights and obligations of the Holders of Servicer under this Agreement and in and to the Outstanding Amount of Mortgage Loans and the Controlling Class) may waive any such Servicer Event of Default and its consequencesproceeds thereof. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be successor appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesSection 6.12.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (First NLC Securitization, Inc.)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment or substitutes a Substitute Lease therefor in accordance with this Assignment and Servicing Agreement;
(v) an involuntary petition or proceeding shall be filed (A) in respect of the Servicer under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) seeking a decree or order adjudging the Servicer bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and either (1) such petition shall not have been dismissed within a period of 60 consecutive days or (2) any such order for relief or decree shall be entered in any such proceeding, or any such receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be appointed;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other recourse obligations of the Servicer exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power recourse obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-performance;
(viii) a final judgment or judgments (or decrees or orders) against the Servicer for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) for any three consecutive Due Periods, the Indenture Trustee in its capacity as Servicer average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(x) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables Funding LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer’s property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any “event of default” under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, the Cumulative Loan Loss Percentage exceeds the following percentages on any Payment Date during the following periods: June 2004 - May 2006 1.70 % June 2006 - May 2007 2.50 % June 2007 - May 2008 3.20 % June 2008 and thereafter 4.50 %
(x) if the total stockholders’ equity of the Master Servicer, as determined by the Master Servicer’s independent accountants in accordance with generally accepted accounting principles, shall be less than $60 million;
(xi) if the total on- or off-A Servicing Agreement or any certificate, report or other writing delivered pursuant balance sheet financing available to the 2021-A Servicing Agreement Master Servicer shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteeless than $400 million; or
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2004-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to Noteholders any collections on Receivables or any other proceeds or payment payments in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 10:00 a.m. (Central time) on the Business Days after the earlier of Day following the date on which (A) notice of such remittance is required; provided that, if such failure is given caused by circumstances beyond the Servicer's control, no Servicer Event of Default will be deemed to have occurred unless such failure continues unremedied until the Servicer by third Business Day following the date such proceeds or payments were required to be so delivered; provided further that the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default); or
(ii) any Any failure by the Servicer to deliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m. (Central time) the following Business Day; provided that if the Servicer has not delivered the Monthly Servicer's Report by 12:00 noon (Central time) on the Determination Date, the Indenture Trustee shall give the Servicer notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iii) Any failure by the Servicer to make a Servicer Advance when required pursuant to Section 3.04 hereof or to deposit in the Collection Account when required any Purchase Price received by it that continues unremedied until 10:00 a.m. (Central time) the following Business Day; provided that if the Servicer has not made such Servicer Advance or deposited such Purchase Price in the Collection Account received by it by 12:00 noon (Central time) on related Determination Date and the Indenture Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Purchase Price is to be paid, the Indenture Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) Any failure on the part of the Servicer in its capacity as such duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement or the Indenture, as the case may be, or if any representation or warranty of the Servicer set forth in Section 2.01 of this Agreement and in the 2021-A Servicing Agreementother Transaction Documents to which the Servicer is a party shall prove to be incorrect, which failure or breach (A) in the case of any such representation or warranty, materially and adversely affects the interest or rights of holders of interests in the 2021-A Exchange Note, Indenture Trustee or the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which (B) continues unremedied for 90 a period of 30 days after the earlier of (x) the date on which the Servicer becomes aware of such failure or breach and (y) written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third partiesMajority Holders, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to Issuer or the Servicer by the Indenture TrusteeBack-up Servicer; or
(ivA) Any assignment or delegation by the Servicer of its duties or rights under the Indenture or this Agreement, except as specifically permitted thereunder or hereunder, or any attempt to make such an assignment; or (B) without the prior written consent of the Majority Holders, any "person" or "group" (as such terms are used in subsections 13(d) and 14(d) of the Securities Exchange Act of 1934 (as amended, the "Exchange Act")) other than one or both of the Key Employees is or becomes the "beneficial owner" (as such term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 100% of the then outstanding voting capital stock of the Servicer; or
(vi) The entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy insolvency or similar law, or appointing a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(vii) The commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(viii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementTrigger Event.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note If a Servicer Event of DefaultDefault occurs, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture TrusteeTrustee shall, acting at the written direction of 66 2/3% the Majority Holders, by notice (the "Servicer Termination Notice") then given in writing to the Servicer and the Back-up Servicer, terminate all, but not less than all, of the Holders rights and obligations of the Outstanding Amount of the Controlling ClassServicer under this Agreement.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Contracts or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms Section 6.02 hereof, and, without limitation, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer of the Contracts and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee Back-up Servicer and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to any of the 2021-A Leases Contracts. To assist the successor Servicer in enforcing all rights under the Contracts and 2021-A Vehicles the Insurance Polices to the extent they relate to the Contracts, the outgoing Servicer, at its own expense, shall transfer its records (electronic and otherwise) relating to such Contracts to the successor Servicer in such form as the successor Servicer may reasonably request and shall transfer the related Contracts and Contract Files (to the extent not held by the Indenture Trustee) or the servicing copies thereof maintained by the outgoing Servicer, and all information or other records, correspondence and documents relating to the Contracts that it may possess to the Indenture Trustee or successor Servicer in the manner and at such Successor Servicer may require, and times as the Successor successor Servicer shall not be liable if it cannot perform due reasonably request. In addition to any other amounts that are then payable to the failure of the predecessor Servicer to so deliver. In additionunder this Agreement, the Servicer shall transfer its electronic records relating be entitled to receive reimbursements for any unreimbursed Servicer Advance made during the period prior to the 2021-A Leases delivery of a Servicer Termination Notice pursuant to this Section 6.01 which terminates the obligations and 2021-A Vehicles to right of the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesunder this Agreement.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.75% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Payment Date, commencing in September 2000, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Payment Date occurring before September 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Payment Date on or after September 1, 2000 and before September 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Payment Date on or after September 1, 2001 and before September 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Payment Date on or after September 1, 2002 and before September 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Payment Date on or after September 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event with respect to of Default under the ServicerIndenture; provided, however, that the occurrence of any event or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementSection 8.04 hereof.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Accounts;
(ix) if on any Payment Date, commencing in March 2001, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Accounts, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company Stockholder's Equity Trigger; and
(xi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any In case one or more of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement Default shall not apply occur and be continuing, that is to the 2021-A Exchange Note or to this 2021-A Servicing Supplementsay:
(i1) any failure by Servicer to deposit into the Collection Account or the Distribution Account or any failure by the Servicer to deliver to make payments therefrom in accordance with Section 5.01; or
(2) any failure on the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the material covenants or agreements on the part of the Servicer, contained in any Basic Document to which it is a party, which continues unremedied for a period of 30 days (or, in the 2021-A Servicing Agreementcase of payment of insurance premiums, for a period of 15 days) after the date on which failure written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any other party hereto or to the Servicer (with copy to each other party hereto), by Holders of 25% of the Percentage Interests of the Notes or the Trust Certificates; or
(3) any breach on the part of the Servicer of any representation or warranty contained in any Basic Document to which it is a party that materially and adversely affects the rights interests of holders any of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, parties hereto or any Securityholder and which continues unremedied for 90 a period of 30 days after written the date on which notice thereof is of such breach, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty other party hereto or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer (with copy to each other party hereto), by the Indenture TrusteeNoteholder Agent or Holders of 25% of the Percentage Interests (as defined in the Indenture) of the Notes; or
(iv4) there shall have been commenced before a court or agency or supervisory authority having jurisdiction in the premises an involuntary proceeding against the Servicer under any present or future federal or state bankruptcy, insolvency or similar law for the appointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, which action shall not have been dismissed for a period of 60 days; or
(5) the occurrence of an Insolvency Event with respect Servicer shall consent to the Servicerappointment of a conservator, receiver, liquidator, trustee or similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of its property; providedor
(6) the Servicer (or the Loan Originator if the Servicer is not Option One) fails to comply with the Financial Covenants; or
(7) the Servicer ceases to be a 100% indirect wholly-owned subsidiary of H&R Block Inc.; or
(8) the Servicer shall admit in writing its inability to pay its debts generally as they become due, however, that the occurrence file a petition to take advantage of any event set forth applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations, or take any corporate action in clauses (i) through (iii) with respect to furtherance of the 2021-A Reference Pool will be an Exchange Note foregoing. Then, and in each and every such case, so long as a Servicer Event of Default only with respect shall not have been remedied, the Indenture Trustee or the Majority Noteholders, by notice in writing to the 2021-A Reference Pool Servicer may, in addition to whatever rights such Person may have at law or in equity to damages, including injunctive relief and will not be a Servicer Event Default with respect to any other Reference Pool or specific performance, may terminate all the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure rights and obligations of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing under this Agreement and this 2021-A Servicing Supplement.
(b) With respect in and to actions taken the Loans and the proceeds thereof, as servicer under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the Upon receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Loans or otherwise, shall, without further actionsubject to Section 9.02 hereof, pass to and be vested in a successor servicer, and the Indenture Trustee or such Successor Servicer as may be appointed pursuant successor servicer is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Sectionpurposes of such notice of termination, including, but not limited to, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one transfer and endorsement or assignment of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-ServicerLoans and related documents. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor servicer for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts to each Collection Account or thereafter received with respect to the 2021Loans.
(b) Upon the occurrence of (i) an Event of Default or Default under any of the Basic Documents, (ii) a Servicer Event of Default under this Agreement, (iii) a Rapid Amortization Trigger or (iv) an event that shall have a reasonable possibility of materially impairing the ability of the Servicer to service and administer the Loans in accordance with the terms and provisions set forth in the Basic Documents (each, a “Term Event”), the Servicer’s right to service the Loans pursuant to the terms of this Agreement shall be in effect for an initial period commencing on the date on which such Term Event occurred and shall automatically terminate at 5:00 p.m., New York City time, on the last Business Day of the calendar month in which such Term Event occurred (the “Initial Term”). Thereafter, the Initial Term shall be extendible in the sole discretion of the Majority Noteholders by written notice (each, a “Servicer Extension Notice”) of the Noteholders for successive one-A Leases and 2021-A Vehicles and all information or documents month terms (each such term ending at 5:00 p.m., New York City time, on the last business day of the related month). Following a Term Event, the Servicer hereby agrees that the Indenture Trustee or such Successor Servicer may require, shall be bound for the duration of the Initial Term and the Successor term covered by any such Servicer Extension Notice to act as the Servicer pursuant to this Agreement. Following a Term Event, the Servicer agrees that if, as of 3:00 p.m. New York City time on the last Business Day of any month, the Servicer shall not be liable if it cannot perform due have received a Servicer Extension Notice from the Majority Noteholders, the Servicer shall give written notice of such non-receipt to the Noteholders by 4:00 p.m. New York City time. Following a Term Event, the failure of the predecessor Noteholders, to deliver a Servicer to so deliverExtension Notice by 5:00 p.m. New York City time shall result in the automatic and immediate termination of the Servicer (the “Termination Date”). In additionNotwithstanding these time frames, the Servicer and the Noteholders shall comply with all applicable laws in connection with such transfer its electronic records relating and the Servicer shall continue to service the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation Loans until completion of such costs and expensestransfer.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an “Exchange Note shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to Default under this 2021-A Servicing SupplementAgreement:
(i) any failure by the Servicer to deliver remit to Company or deposit in the Indenture Trustee Collection Account any proceeds or payment amount required to be so delivered with respect to the 2021-A Exchange Note remitted or deposited under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that and such failure continues unremedied for ten a period of three (3) Business Days after the earlier of (A) the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee Company or (B) an Authorized Officer of the Servicer has actual knowledge Servicer’s discovery of such failure;
(ii) any failure by the Servicer to duly observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of Servicer as set forth in the 2021-A Servicing Agreement, this Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeCompany;
(iii) an Insolvency Event shall have occurred with respect to Servicer;
(iv) Servicer shall become Insolvent, admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any representationapplicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(v) any representation or warranty or statement made by Servicer as set forth in Section 9 proves not to have been complete, true and correct in any respect as of the date when made which could reasonably be expected to have a Material Adverse Effect;
(vi) Servicer made fails to maintain any Permits required for (A) the operation of Servicer’s servicing business or compliance by Servicer with its obligations under this Agreement or (B) the operation of Servicer’s non-servicing business if, only in the 2021-A Servicing Agreement case of clause (B), the failure to maintain any such required Permit could reasonably be expected to have a Material Adverse Effect;
(vii) Servicer fails to comply with applicable Laws and such failure could reasonably be expected to have a Material Adverse Effect;
(viii) any regulatory inquiry (other than a routine regulatory examination, a complaint regarding a single Buyer or an inquiry that does not allege, or could not reasonably be expected to result in an allegation of, a violation of Law by Servicer or any certificate, report agent or other writing delivered pursuant representative of Servicer with respect to the 2021-A Servicing Agreement shall prove Services or a material violation of Law by Servicer or any agent or other representative of Servicer whether or not with respect to the Services), investigation, enforcement action or litigation is commenced or order or judgment is imposed on or issued against Servicer or any agent or other representative of Servicer, in each case that could reasonably be incorrect in expected to have a Material Adverse Effect;
(ix) The occurrence of any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the adverse change or event that Certificates are sold could reasonably be expected to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteehave a Material Adverse Effect; or
(ivx) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the The occurrence of any event set forth Change in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event Control of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementServicer.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds %;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: - % - % - % and thereafter %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 14%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: December 2004 - November 2006 3.00 % December 2006 - November 2007 4.50 % December 2007 - November 2008 5.25 % December 2008 and thereafter 5.50 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2004-4)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note ("Servicer Events of Default” set forth in Section 8.03(a") of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(iA) any The failure by the Servicer to deliver make any Monthly Advance which continues unremedied for a period of one (1) Business Day after it was due; (B) any other failure by the Servicer to deposit in the Indenture Trustee Collection Account or the Payment Account any proceeds or payment deposit required to be so delivered with respect to the 2021-A Exchange Note made under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that which continues unremedied for ten a period of two (2) Business Days after such deposit was due or (C) the earlier of the date on which (A) notice of such failure is given to by the Servicer by to make any remittances into the Indenture Trustee or Payment Account required pursuant to Section 3.03(i) which continues unremedied for a period of one (B1) an Authorized Officer of the Servicer has actual knowledge of such failureBusiness Day after it was due;
(ii) any (A) The failure by the Servicer to make any required Servicing Advance which failure continues unremedied for a period of sixty (60) days, or (B) the failure by the Servicer duly to observe or perform perform, in any material respect respect, any other of its covenants covenants, obligations or agreements of the Servicer as set forth in the 2021-A Servicing this Agreement, which failure materially and adversely affects the rights interests of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days a period of sixty (60) days, after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer, the Securities Administrator or the Indenture Trustee or to the Servicer and the Master Servicer, the Securities Administrator or the Indenture Trustee, by the Holders of not less than 25% of the aggregate Note Balance of the Notes; PROVIDED, HOWEVER, that in the case of a failure that cannot be -------- ------- cured within sixty (60) days, the cure period may be extended if the Servicer can demonstrate to the reasonable satisfaction of the Master Servicer, the Securities Administrator, the Indenture Trustee and the Seller that the Servicer is diligently pursuing remedial action;
(iii) The filing of a petition against the Servicer in a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee, conservator, receiver or liquidator in any representationinsolvency, warranty conservatorship, receivership, readjustment of debt, marshaling of assets and liabilities or statement similar proceedings, or for the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of thirty (30) consecutive days; or
(iv) The Servicer shall voluntarily go into liquidation, consent to the appointment of a conservator or receiver or liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property, or a decree or order of a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, receiver, liquidator or similar person in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer; or the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations; or
(v) the Servicer Termination Test is failed; or
(a) any reduction or withdrawal of the ratings or any shadow ratings of any Class of Notes attributable principally to the Servicer or the servicing of the Mortgage Loans or (b) any placement by a Rating Agency of any Class of Notes on credit watch with negative implications attributable principally to the Servicer or the servicing of the Mortgage Loans; or
(vii) any reduction or withdrawal of the ratings of the Servicer made in as a servicer of subprime mortgage loans by one or more of the 2021-A Servicing Agreement Rating Agencies that maintains a servicer rating system and a rating on the Notes to "below average" or any certificatebelow; or
(viii) the failure by the Servicer to duly perform, report or other writing delivered pursuant within the required time period, its obligation to provide the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights annual statement of holders of interests in the 2021-A Exchange Notecompliance described under Section 3.09, the Noteholders oraccountant's report described under Section 3.10 or the certification described under Section 3.13(e), in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 a period of ten days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeMaster Servicer;
(ix) the failure by the Servicer to provide, within the time frame specified herein, any required reports or data pertaining to the Mortgage Loans, which failure continues unremedied for a period of fifteen days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Master Servicer; or
(ivx) the occurrence identification under any filing pursuant to Section 404 of an Insolvency Event the Xxxxxxxx-Xxxxx Act of 2002 which identifies material weaknesses in connection with respect to the Servicer; provided, however, that 's ongoing evaluation of internal controls which materially and adversely affect the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts Servicer's ability to perform any of its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and duties under this 2021-A Servicing SupplementAgreement.
(b) With then, and in each and every such case, so long as a Servicer Event of Default shall not have been remedied, (x) with respect solely to actions taken under Section 8.03(cclause (a)(i)(A) above, (1) on the related Deposit Date, upon receipt of written notice or discovery by the Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of such failure, the Master Servicer shall give telephonic notice (by no later than 5:00 p.m. New York time on such Deposit Date) of the Basic failure to make a Monthly Advance to a Servicing Agreement after Officer of the occurrence Servicer and, to the extent the applicable current contact information has been provided to the Master Servicer, the Servicing Rights Pledgee and (2) on the Business Day immediately following the related Deposit Date, upon receipt of an Exchange Note Servicer Event of Default, any actions to be taken written notice or discovery by the 2021-A Exchange Noteholder thereunder Master Servicer or a Responsible Officer of the Indenture Trustee or of the Securities Administrator of the continued failure to make such Monthly Advance, the Master Servicer shall be exercised promptly give telephonic notice of such failure to a Servicing Officer of the Servicer and the Master Servicer shall direct the Indenture Trustee to terminate all of the rights and obligations of the Servicer under this Agreement and the Successor Servicer appointed in accordance with Section 6.02 shall immediately make such Monthly Advance prior to the distribution of funds on the related Payment Date and assume, pursuant to Section 6.02, the duties of a Successor Servicer and (y) in the case of clause (a)(i)(C) the Indenture Trustee and the Depositor may (and shall at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes) and in the case of clause (a)(i)(B) and (ii) through (x) above, the Indenture Trustee shall, at the direction of the Holders of not less than 51% of the aggregate Note Balance of the Notes by notice then given in writing to the Seller, the Servicer, the Master Servicer, the Servicing Rights Pledgee (to the extent the applicable current contact information has been provided to the Master Servicer), the Rating Agencies and if given by Holders of Notes, to the Indenture Trustee, acting at the written direction of 66 2/3% terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of as servicer under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to and under this SectionSection 6.01; and, without limitation, the Successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of each Mortgage Loan and related documents, or otherwise. The Servicer agrees to cooperate with the Successor Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer for the administration by it of all cash amounts that shall at the time be held by the outgoing predecessor Servicer for depositand to be deposited by it in the Collection Account, or that have been deposited by the outgoing Servicer, predecessor Servicer in the 2021-A Bank Accounts Collection Account or thereafter received by the predecessor Servicer with respect to the 2021Mortgage Loans. All Servicing Transfer Costs and other reasonable out-A Leases of-pocket costs and 2021-A Vehicles and all information or documents that expenses (including attorneys' fees) incurred in connection with transferring the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles Mortgage Files to the Successor Servicer in and amending this Agreement to reflect such electronic form succession as the Successor Servicer may reasonably request. All Transition Costs pursuant to this Section 6.01 shall be paid by the outgoing predecessor Servicer within 90 days of written demand, itemized in reasonable detail, or, to the extent not paid by the predecessor Servicer, by the Trust prior to payments to Noteholders (or or, if the predecessor Servicer is the Master Servicer, by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) Servicer), upon presentation of reasonable documentation of such costs and expenses. If the predecessor Servicer is required but fails to pay the amounts specified in the preceding sentence and such amounts are paid by the Trust, the Securities Administrator shall, at the direction and expense of the Certificateholders, take appropriate action to enforce such obligation and recover such amounts on behalf of such Certificateholders. Notwithstanding any termination of the activities of the Servicer hereunder, the Servicer shall continue to be entitled to receive from the Trust, payment of all the accrued and unpaid portion of the Servicing Fees to which the Servicer would have been entitled and reimbursement for all outstanding Monthly Advances and Servicing Advances, including but not limited to trailing expenses representing Servicing Advances incurred by the Servicer prior to but invoiced after the date of termination, which amount shall be remitted by the Successor Servicer to the terminated Servicer as permitted under Section 3.03 on a first-in, first-out basis. The Servicer shall continue to be entitled to the benefits of Section 5.03, notwithstanding any termination hereunder, with respect to events occurring prior to such termination.
(c) Upon the occurrence of a Servicer Event of Default, the Servicer shall act as Servicer under this Agreement, subject to the right of removal set forth in subsection (b) hereof, for an initial period commencing on the date on which such Servicer Event of Default occurred and ending on the last day of the calendar quarter in which such Servicer Event of Default occurred, which period may be extended by the Master Servicer (an "Extension Notice") for a succeeding quarterly period ending on December 31, March 31, June 30 and September 30 of each year (each such quarterly period for which the Servicer shall be designated to act as Servicer hereunder, a "Servicer Term of Service") until such time as the Master Servicer, the Securities Administrator and the Indenture Trustee receives written direction from the Holders of not less than 51% of the aggregate Note Balance of the Notes not to deliver an Extension Notice, in which event the Master Servicer shall follow such direction; provided that nothing in this clause (c) shall prohibit the Master Servicer from removing (or prohibit Noteholders from directing the Indenture Trustee or the Securities Administrator to direct the Master Servicer to remove) the Servicer pursuant to clause (b) above. In the event the Master Servicer fails to deliver an Extension Notice prior to the end of any Servicer Term of Service, the Servicer shall be automatically terminated.
(d) If the Successor Servicer or another Person succeeds to the obligations of Servicer hereunder, the term of the Successor Servicer or such Person shall not be limited unless and until a Servicer Event of Default thereafter occurs with respect to such Successor Servicer or other Person. At such time, the provisions of Section 6.01(c) and (d) shall become applicable to the then-acting Servicer and the Person then-obligated to succeed such then-acting Servicer.
Appears in 1 contract
Samples: Servicing Agreement (Renaissance Mortgage Acceptance Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementeach constitute a "SERVICER EVENT OF DEFAULT" hereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer and the Note Insurer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(ii) the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(iiiii) any failure by on the part of the Master Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer's property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021-A Servicing Agreement benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any certificate"event of default" under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Three Month Delinquency Rate exceeds 5.0%;
(ix) if on any Payment Date, report or other writing delivered pursuant to Twelve Month Loss Amount exceeds 1.50% of the 2021-A Servicing Agreement shall prove to be incorrect in Aggregate Principal Balance of the Mortgage Loans, as of the close of business on the later of April 1, 2000 and the first day of the twelfth preceding calendar month;
(x) if (a) on any material respect when madePayment Date occurring before March 1, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note2001, the Noteholders oraggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.25% of the Cut-Off Date Aggregate Principal Balance of the Mortgage Loans in both Loan Groups, in the event that Certificates are sold to unaffiliated third parties(b) on any Payment Date after March 1, 2001 and before March 1, 2002, the Certificateholdersaggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.75% of the Cut-Off Date Aggregate Principal Balance of the Mortgage Loans in both Loan Groups, (c) on any Payment Date on or after March 1, 2002 and which failure continues unremedied for 90 days before March 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.75% of the Cut-Off Date Aggregate Principal Balance of the Mortgage Loans in both Loan Groups, (d) on any Payment Date on or after written notice thereof is given to March 1, 2003 and before March 1, 2004, the Servicer by aggregate Cumulative Loan Losses since the Indenture Trustee; orInitial Cut-Off Date exceed 3.50% of the Cut-Off Date Aggregate Principal Balance of the Mortgage Loans in both Loan Groups, or (e) on any Payment Date on or after March 1, 2004, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 4.50% of the Cut-Off Date Aggregate Principal Balance of the Mortgage Loans in both Loan Groups;
(ivxi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be Indenture; or
(xii) a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will Extension Notice shall not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereondelivered as set forth n Section 8.04 hereof.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Home Lenders Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note and conditions shall constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(ia) any failure by on the part of Servicer to deliver deposit into the Collection Account or other applicable account within three Business Days following the receipt thereof any monies received by Servicer (including any Lease Payments and any Non-Performing Lease Payments) and required to be deposited hereunder;
(b) so long as ILC is Servicer hereunder, failure on the part of ILC to pay to Indenture Trustee on the date when due in accordance with the terms hereof, any proceeds or payment required to be so delivered with respect made by Transferor pursuant to Section 5.1.
(c) failure on the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier part of the date on which (A) notice of such failure is given to the either Servicer by the Indenture Trustee or (Bso long as ILC is Servicer) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer ILC to duly observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A Servicing Agreement, this Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of Transferor or Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to Transferor or Servicer, as the Servicer case may be, by Indenture Trustee or Trustee, or to Transferor or Servicer, as the case may be, and Indenture TrusteeTrustee by any Holder of the Notes or the Certificates;
(iiii) if any representation, representation or warranty or statement of the Servicer made by Transferor in the 2021-A Servicing this Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made; provided, which failure materially and adversely that the breach of any representation or warranty made by Transferor or Servicer in this Agreement will be deemed to be "material" only if it affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, or the Certificateholders, the enforceability of the Indenture or of the Notes or the enforceability of the Trust Agreement or the Certificates; and which failure continues unremedied provided, further, that a material breach of any representation or warranty made by Transferor in this Agreement with respect to any of the Leases or the Equipment subject thereto will not constitute a Servicer Event of Default if Transferor repurchases such Lease and Equipment in accordance with this Agreement.
(ii) the entry by a court having jurisdiction in the premises of (A) a decree or order for 90 days after written notice thereof is given relief in respect of Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(iii) the commencement by Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the Indenture Trustee; orconsent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by Servicer to pay its debts generally as they become due, or the taking of corporate action by Servicer in furtherance of any such action;
(iv) the occurrence failure of an Insolvency Event Servicer to make one or more payments due with respect to the Servicer; providedaggregate recourse debt or other obligations exceeding $1,000,000, however, that or the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding existence of any condition, the foregoingeffect of which event or condition is to cause (or permit one or more persons to cause) more than $1,000,000 of aggregate recourse debt or other obligations of Servicer to become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, event or condition shall be continuing and shall not have been waived by the Person or Persons entitled to performance; or
(v) a delay in final judgment or failure of performance referred to under clause judgments (i), (ii) or (iiidecrees or orders) for a period the payment of 120 days will not constitute an Exchange Note Servicer Event money aggregating in excess of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement $1,000,000 and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer judgments (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basisdecrees or orders) upon presentation has remained unsatisfied and in effect for any period of reasonable documentation 60 consecutive days without a stay of such costs and expensesexecution.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Provident Lease Receivables Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212015-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212015-A Exchange Note or to this 20212015-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212015-A Exchange Note under the Basic Servicing Agreement or this 20212015-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212015-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212015-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212015-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212015-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212015-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212015-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212015-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212015-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212015-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212015-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212015-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212015-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212015-A Bank Accounts or thereafter received with respect to the 20212015-A Leases and 20212015-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212015-A Leases and 20212015-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2015-A Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2015-A Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2015-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to Noteholders any collections on Receivables or any other proceeds or payment payments in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 10:00 a.m. (Central time) on the Business Days after the earlier of Day following the date on which (A) notice of such failure remittance is given to the Servicer by required; provided that the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any Any failure by the Servicer to deliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m. (Central time) the following Business Day; provided that if the Servicer has not delivered the Monthly Servicer's Report by 12:00 noon (Central time) on the Determination Date, the Indenture Trustee shall give the Servicer notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iii) Any failure by the Servicer to make a Servicer Advance when required pursuant to Section 3.04 hereof or to deposit in the Collection Account when required any Purchase Price received by it that continues unremedied until 10:00 a.m. (Central time) the following Business Day; provided that if the Servicer has not made such Servicer Advance or deposited such Purchase Price in the Collection Account received by it by 12:00 noon (Central time) on related Determination Date and the Indenture Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Purchase Price is to be paid, the Indenture Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Indenture Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) Any failure on the part of the Servicer in its capacity as such duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer set forth in this Agreement or the Indenture, as the case may be, or if any representation or warranty of the Servicer set forth in Section 2.01 of this Agreement and in the 2021-A Servicing Agreementother Transaction Documents to which the Servicer is a party shall prove to be incorrect, which failure or breach (A) in the case of any such representation or warranty, materially and adversely affects the interest or rights of holders of interests in the 2021-A Exchange NoteNote Insurer, the Indenture Trustee, or the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which (B) continues unremedied for 90 a period of 30 days after the earlier of (x) the date on which the Servicer becomes aware of such failure or breach and (y) written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third partiesControlling Party, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to Issuer or the Servicer by the Indenture TrusteeBack-up Servicer; or
(ivv) Any assignment by the Servicer to a delegate of its duties or rights under the Indenture or this Agreement, except as specifically permitted thereunder or hereunder, or any attempt to make such an assignment; or
(vi) The entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy insolvency or similar law, or appointing a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(vii) The commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(viii) the occurrence of an Insolvency Event with respect to event of default under the Servicer; providedCredit Agreement that is not cured, howeverremedied or waived in writing, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementCredit Agreement, within 30 days of the date of initial occurrence of such event of default; or
(ix) the ratio of consolidated indebtedness to consolidated Tangible Net Worth of the Reported Companies is greater than 6.5 to 1.0; or
(x) the allowance for bad debt of the Reported Companies is less than 7.0% of the gross lease installments; or
(xi) for any fiscal quarter, the fixed charge ratio of the Reported Companies is less than 1.25 to 1.0; or
(xii) the occurrence of a Trigger Event.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note If a Servicer Event of DefaultDefault occurs, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture TrusteeTrustee shall, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling ClassParty, by notice (the "Servicer Termination Notice") then given in writing to the Servicer and the Back-up Servicer, terminate all, but not less than all, of the rights and obligations of the Servicer under this Agreement.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Contracts or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms Section 6.02 hereof, and, without limitation, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer of the Contracts and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee Back-up Servicer and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure any of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.the
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee for payment to Noteholders any proceeds or payment payments received from a Customer or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied until 10:00 a.m., Minneapolis time, for ten two Business Days after Days; provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteMinneapolis time, the Noteholders orBusiness Day following the date delivery is required; provided, in however, that if the event that Certificates are sold to unaffiliated third partiesServicer has not delivered the Monthly Servicer's Report by 12:00 noon, Minneapolis time, on the Determination Date, the CertificateholdersTrustee shall give the Servicer notice of such failure. Notwithstanding the foregoing, and which continues unremedied for 90 days after written any failure by the Trustee to deliver such notice thereof is given to the Servicer by shall not prohibit the Indenture Trustee;occurrence of a Servicer Event of Default; or
(iii) any representationfailure by the Servicer to make a Servicer Advance pursuant to Section 3.04 hereof or to deposit any Purchase Price received by it that continues unremedied until 10:00 a.m., warranty Minneapolis time, the following Business Day following the date delivery is required; provided, however, that if the Servicer has not made the Servicer Advance or statement deposited any Purchase Price received by it by 12:00 noon, Minneapolis time, on the Determination Date and the Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Purchase Price is to be paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) any failure by the Servicer to make remittances or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 10:00 a.m., Minneapolis time, of the third successive Business Day; or
(v) any failure on the part of the Servicer made duly to observe or perform any other covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement or the Indenture, as the case may be, or any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when maderespect, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure or breach continues unremedied for 90 a period of thirty (30) days after the date on which the Servicer becomes aware of such failure or breach, or written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture TrusteeTrustee or the Issuer or to a Servicing Officer of the Servicer and the Trustee by Holders of Notes representing not less than 25% of the aggregate principal amount of the Notes Outstanding; or
(ivvi) any assignment by the Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) the entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect, or failure for such petition to be dismissed, for a period of 60 consecutive days; or
(viii) the commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) the occurrence of an Insolvency a Trigger Event with respect to if the initial Servicer is the Servicer; provided, however, that the occurrence of any event set forth in clauses .
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only with respect shall not have been remedied within the period set forth in subparagraphs (i), (ii), (iii), (iv), (v) or (vii) above, as applicable, the Trustee shall, by notice (the "Servicer Termination Notice") given in writing to the 2021-A Reference Pool Servicer, terminate all, but not less than all, of the rights and will not be a obligations of the Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolunder this Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSections 6.01(a)(ii) or (iii6.01(a)(v) hereof for a period of 120 30 or more days will shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeure. Upon the occurrence acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes; provided, however, that in any such event, such delay or failure shall constitute a Servicer Event of Default if it continues unremedied for a period of thirty (30) days. The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling ClassAgreement.
(c) In accordance with Section 8.05 the event of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Defaulta Trigger Event, the 2021Trustee may, and if directed by Holders of Notes representing at least 66-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders aggregate amount of Notes Outstanding, shall, by a Servicer Termination Notice given in writing to the Servicer, terminate all but not less than all of the Outstanding Amount rights and obligations of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) In the event that Sunrise Leasing Corporation resigns or is terminated as Servicer pursuant to this Agreement and a successor Servicer is appointed hereunder, the Holders of Notes representing at least 66-2/3% of the aggregate amount of the Notes Outstanding may direct the Trustee to, and the Trustee shall, terminate, by a Servicer Termination Notice given in writing to such successor Servicer, all but not less than all of the rights and obligations of such successor Servicer under this Agreement and appoint a new successor Servicer which has been approved by such Holders.
(e) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Lease Contracts or otherwise, shall, without further action, otherwise shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms Section 6.02 hereof, and, without limitation, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer of the Lease Contracts and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Servicer or thereafter received with respect to Lease Contracts. To assist the 2021-A Leases successor Servicer in enforcing all rights under the Lease Contracts and 2021-A Vehicles the Insurance Polices to the extent they relate to the Lease Contracts, the outgoing Servicer, at its own expense, shall transfer its records (electronic and otherwise) relating to such Lease Contracts to the successor Servicer in such form as the successor Servicer may reasonably request and shall transfer the related Lease Contracts (to the extent not held by the Trustee) and all information or other records, correspondence and documents relating to the Lease Contracts that it may possess to the Indenture Trustee or successor Servicer in the manner and at such Successor Servicer may require, and times as the Successor successor Servicer shall not be liable if it cannot perform due reasonably request. In addition to any other amounts that are then payable to the failure of the predecessor Servicer to so deliver. In additionunder this Agreement, the Servicer shall transfer its electronic records relating be entitled to receive reimbursements for any unreimbursed Servicer Advance made during the period prior to the 2021-A Leases delivery of a Servicer Termination Notice pursuant to this Section 6.01 which terminates the obligations and 2021-A Vehicles to rights of the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesunder this Agreement.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, Residual Account, Class A Principal Payment Account, the Class A Funding Account or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds or payment Lease Payments and any Non-Performing Lease Payments) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited hereunder;
(ii) so long as the Transferor is the Servicer hereunder, failure on the part of the Transferor to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Transferor pursuant to Section 4 hereof;
(iii) failure on the part of either the Servicer or (so long as the Transferor is the Servicer) the Transferor to duly observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Transferor or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Transferor or the Servicer, as the case may be, by the Indenture Trustee, or to the Transferor or the Servicer, as the case may be, and the Trustee by any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Transferor in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made; PROVIDED, which failure materially HOWEVER, that the breach of any representation or warranty made -------- ------- by the Transferor or Servicer in this Assignment and adversely Servicing Agreement will be deemed to be "material" only if it affects the rights of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders orenforceability of the Indenture or of the Notes; and PROVIDED, in the event FURTHER, that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer a material -------- ------- breach of any representation or warranty made by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event Transferor in this Assignment and Servicing Agreement with respect to any of the Servicer; providedLeases or the Equipment subject thereto will not constitute a Servicer Event of Default if the Transferor purchases such Lease and Equipment in accordance with this Assignment and Servicing Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, howeverinsolvency, that reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or the taking of corporate action by the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence existence of any such eventcondition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance; or
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer judgments (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basisdecrees or orders) upon presentation has remained unsatisfied and in effect for any period of reasonable documentation 60 consecutive days without a stay of such costs and expensesexecution.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Copelco Capital Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an “Exchange Note shall constitute a "Servicer Event of Default” with respect to " on the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) part of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementServicer:
(ia) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its the terms, covenants or agreements on the part of the Servicer set forth in this Agreement, any Transfer Supplement or in the 2021-A Servicing AgreementCustodial Agreement (other than those set forth in clauses (h), which failure materially (i) and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and (m) below) which continues unremedied for 90 a period of forty-five (45) days after the date on which the Servicer has actual knowledge of such failure or written notice thereof is of such failure, requiring the failure to be remedied, shall have been given to the Servicer by the Indenture TrusteeAdministrative Agent, Custodian or the Agent;
(iiib) any representation, warranty warranty, statement or statement of certificate made by the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to have been incorrect in any material respect at the time when made, and which continues to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 45 days after actual knowledge or written notice thereof is given to notice;
(c) any failure by the Servicer by to maintain any required licenses to do business in any jurisdiction where the Indenture Trustee; orMortgaged Property is located;
(ivd) jurisdiction for the occurrence appointment of an Insolvency Event with respect to a conservator or receiver or liquidator in any insolvency, readjustment of debt, including bankruptcy, marshalling of assets and liabilities or similar proceedings, or for the Servicer; providedwinding-up or liquidation of its affairs, however, that shall have been entered against the occurrence of any event set forth Servicer and a decree or order shall have remained in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool force undischarged or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) unstayed for a period of 120 days will not constitute 45 days;
(e) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer or of or relating to all or substantially all of its property;
(f) the Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an Exchange Note assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or cease its normal business operations for six Business Days;
(g) the Servicer Event or PHH Corporation enters into a consent agreement or otherwise agrees in writing with any federal or state regulatory agency or authority to restrict its activities, if the default of Default if that such agreement by the Servicer or PHH Corporation entitles such applicable federal or state agency to place the Servicer in receivership or conservatorship;
(h) failure of the Servicer to deposit into the Collateral Account on the date of sale or delay was caused by Force Majeure. Upon Securitization of an Eligible Loan the occurrence proceeds of any such event, sale or Securitization;
(i) failure of the Servicer will to deposit into the Collection Account not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement later than two Business Days after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice any amounts required by Section 4.5 hereof to be deposited by the Servicer in the Collection Account;
(j) the Seller, Servicer or PHH Corporation shall default on any of its debt obligations in excess of $50,000,000 in the aggregate;
(k) failure of the Servicer to be an Exchange Note Approved Seller/Servicer by GNMA, and at least one of FNMA and FHLMC;
(l) the ratings of PHH Corporation or its successors and assigns are withdrawn or are downgraded below "BBB-" or "Baa3" by either Rating Agency; or
(m) the failure on the part of the Servicer to make any payment or deposit (not described in clause (h) or (i) above) required under this Agreement on or before five Business Days after the date such payment or deposit is required to be made. In each and every such case, so long as a Servicer Event of DefaultDefault shall not have been remedied, in addition to whatsoever rights the Purchaser may have at law or in equity to damages, including injunctive relief and specific performance, the Administrative Agent, by notice in writing to the Servicer, the Agent, Xxxxx'x and S&P may terminate all of the rights and obligations of the Servicer under this Agreement and in and to the Eligible Loans and the proceeds thereof other than unpaid Servicing Fees. The Administrative Agent will only remove the Servicer as described above upon the affirmative vote of the Majority Owners. Upon receipt by the Servicer of such written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Eligible Loans or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor Servicer as may be successor appointed pursuant to Section 12.1 hereof. Upon written request from the terms Administrative Agent, the Servicer shall prepare, execute and deliver to the successor entity designated by the Administrative Agent any and all documents and other instruments, place in such successor's possession all Mortgage Loan Files, and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including but not limited to the transfer and endorsement or assignment of the Basic Servicing Agreement. If Eligible Loans and related documents, at the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer's sole expense. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer successor in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including without limitation, the transfer to the Indenture Trustee or such Successor Servicer successor for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, to any Collection Account or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Escrow Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesEligible Loans.
Appears in 1 contract
Samples: Mortgage Loan Repurchase and Servicing Agreement (PHH Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer (A) to deliver to the Indenture Local Bank for deposit in the Local Bank Account or (B) to deliver or cause to be delivered to the Trustee for deposit in the Collection Account any proceeds or payment payments received from an Obligor or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 2:00 p.m., New York time, on the second successive Business Days after Day following such failure; or provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 2:00 p.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteNew York time, the Noteholders orfollowing Business Day; provided, in however, that if the event Trustee has actual knowledge that Certificates are sold to unaffiliated third partiesthe Servicer has not delivered such Monthly Servicer's Report by 2:00 p.m., New York time, on a Determination Date, the CertificateholdersTrustee shall give the Servicer written, and which continues unremedied for 90 days after written telecopied or telephonic notice thereof is given of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer by shall not prevent the Indenture Trustee;occurrence of a Servicer Event of Default; or
(iii) any representationfailure by the Servicer to remit any Purchase Price received by it to the Trustee that continues unremedied until 5:00 p.m., warranty New York time, the following Business Day; provided, however, that if the Servicer has not remitted any Purchase Price received by it to the Trustee by 3:00 p.m., New York time, on the Determination Date and the Trustee has actual knowledge that such Purchase Price has not been paid, the Trustee shall give the Servicer prompt written, telecopied or statement telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) any failure by the Servicer to make remittances (other than a remittance of Purchase Price referred to in clause (iii) above) or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 2:00 p.m., New York time, of the second successive Business Day; or
(v) any failure on the part of the Servicer made duly to observe or perform any other covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement or the Indenture or any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when maderespect, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure or breach continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach, or receives written notice thereof is given to the Servicer by the Indenture Trusteeof such failure or breach; or
(ivvi) any assignment by the Servicer to a delegate of its duties or rights under this Agreement or except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) the entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect, or failure for such petition to be dismissed, for a period of 60 consecutive days; or
(viii) the commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay their debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) the stockholders' equity of the Servicer and its consolidated subsidiaries, determined in accordance with generally accepted accounting principles, as would be shown on a consolidated balance sheet for such Persons, is below $50,000,000; or
(x) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses a Trigger Event.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note If a Servicer Event of Default only with respect shall have occurred and be continuing, the Trustee shall, upon written direction of the Holders of Notes representing not less than 66-2/3% in principal amount of the Outstanding Notes of the Controlling Class, by notice (the "Servicer Termination Notice") given in writing to the 2021-A Reference Pool Servicer terminate all, but not less than all, of the rights and will not be a obligations (except as expressly provided herein) of the Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolunder this Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSections 6.01(a)(ii) or (iii6.01(a)(v) hereof for a period of 120 not more than 30 days will past the applicable cure period shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeure. Upon the occurrence acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes; provided, however, that in any such event, such delay or failure shall constitute a Servicer Event of Default if it continues unremedied for a period of 30 days past the applicable cure period. The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of Servicer shall provide the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction Issuer and the Noteholders with prompt notice of 66 2/3% such failure or delay by it, together with a description of the Holders of the Outstanding Amount of the Controlling Classits efforts to so perform its obligations.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, Agreement shall pass to and be vested in the Indenture Trustee or such Successor as successor Servicer as may be unless another successor Servicer is appointed pursuant to Section 6.02 hereof; any successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the terms purposes of such notice of termination, whether to complete the transfer of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionLoan Documents, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Servicer or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and Trust Estate. To assist the successor Servicer in enforcing all information rights under the Contracts, the outgoing Servicer, at its own expense (including, without limitation, any costs or documents that expenses associated with the Indenture Trustee or such Successor Servicer may require, complete transfer of all servicing data and the Successor completion, correction or manipulation of such servicing data as may be required by the successor Servicer shall not be liable if it cannot perform due to correct any errors or insufficiencies in the servicing data or otherwise to enable the successor Servicer to service the Contracts properly and effectively to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor successor Servicer in such electronic form as the Successor successor Servicer may reasonably request. All Transition Costs ), shall be paid transfer its records (electronic and otherwise) relating to the Trust Estate and shall transfer the related Loan Documents (to the extent not held by the outgoing Trustee) and all other records, correspondence and documents relating to the Trust Estate that it may possess to the successor Servicer (or by in the initial manner and at such times as the successor Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesshall reasonably request.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of sixty (60) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Distribution Date the Rolling Six Month Delinquency Rate exceeds ____% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Distribution Date, commencing in _______, the Twelve Month Loss Amount exceeds ____% of the aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Distribution Date occurring before ________, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed ____% of the Original Pool Principal Balance, (b) on any Distribution Date on or after _______ and before _______, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed _____% of the Original Pool Principal Balance, (c) on any Distribution Date on or after _______ and before _______, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed ____% of the Original Pool Principal Balance, (d) on any Distribution Date on or after _______ and before _______, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed _____% of the Original Pool Principal Balance, or (e) on any Distribution Date on or after _______, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed ____% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event with respect to of Default under the ServicerIndenture; provided, however, that the occurrence of any event or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementSection 8.04 hereof.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Distribution Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of under this Section shall be Agreement and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer’s property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021-A Servicing Agreement benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any certificate, report or other writing delivered pursuant to Payment Date the 2021-A Servicing Agreement shall prove to be incorrect in Rolling Six Month Delinquency Ratio exceeds 14.0%;
(viii) if on any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NotePayment Date, the Noteholders or, in Cumulative Loan Loss Percentage exceeds the event that Certificates are sold to unaffiliated third parties, following percentages on any Payment Date during the Certificateholders, following periods: August 2004 - July 2006 1.70 % August 2006 - July 2007 2.50 % August 2007 - July 2008 3.20 % August 2008 and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; orthereafter 4.50 %
(ivix) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2004-3)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 23.80%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: July 2009 to June 2010 6.50 % July 2010 to June 2011 7.00 % July 2011 to June 2012 7.50 % July 2012 and thereafter 8.00 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Swap Provider of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2006-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212014-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212014-A Exchange Note or to this 20212014-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212014-A Exchange Note under the Basic Servicing Agreement or this 20212014-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212014-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212014-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212014-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212014-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212014-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an certain Insolvency Event Events with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212014-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212014-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212014-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212014-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212014-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212014-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212014-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212014-A Bank Accounts or thereafter received with respect to the 20212014-A Leases and 20212014-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212014-A Leases and 20212014-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2014-A Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2014-A Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder and the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2014-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.50% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Payment Date, commencing in December 2001, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company Stockholders' Equity Trigger; and
(xi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of If any one of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note ("Servicer Events of Default” set forth in Section 8.03(a") of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementoccur and be continuing:
(i) any Any failure by the Servicer to deliver to deposit into the Indenture Trustee Collateral Account any proceeds or payment payment, required to be so delivered with respect to the 2021-A Exchange Note deposited under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that continues shall continue unremedied for ten a period of three Business Days after the earlier of the date on which (A) written notice of such failure is given to received by the Servicer by from FIRC or the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;Collateral Agent; or
(ii) any failure by Failure on the part of the Servicer duly to duly observe or to perform in any material respect any other of its covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement, which failure shall (a) materially and adversely affects affect the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, FIRC and which continues (b) continue unremedied for 90 a period of 30 days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee;FIRC; or
(iii) any representationThe entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a conservator, warranty receiver, or statement of liquidator for the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects liabilities, or similar proceedings, or for the rights winding up or liquidation of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteeits affairs; or
(iv) The consent by the occurrence of an Insolvency Event with respect Servicer to the Servicerappointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities, or similar proceedings of or relating to the Servicer or of or relating substantially to all of its property; providedor the Servicer shall admit in writing its inability to pay its debts generally as they become due, however, that the occurrence file a petition to avail itself of any event set forth applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations; then, and in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note each and every case, so long as a Servicer Event of Default only with respect to the 2021-A Reference Pool and will shall not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoinghave been cured, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using FIRC may terminate all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement rights and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect subject to accrued compensation, rights of reimbursement and the survival of indemnity and limitation on liability provisions, by notice in writing to the NotesServicer sent by certified mail, postage prepaid, or by hand delivery. Upon the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms Servicer's receipt of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer notice of termination pursuant to this SectionSection 8.01, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Servicing Agreement (First Investors Financial Services Group Inc)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 23.80%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: Payment Date Occurring During Percentage July 2009 to June 2010 6.50 % July 2010 to June 2011 7.00 % July 2011 to June 2012 7.50 % July 2012 and thereafter 8.00 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another 57 successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Swap Provider of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Lockbox Account or other applicable account in accordance with the terms of the Indenture within two Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee any proceeds or payment and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited hereunder;
(ii) any so long as the Servicer is the Servicer hereunder, failure by on the part of the Servicer to duly pay to the Trustee on the date when due in accordance with the terms hereof, any payment required to be made by the Seller pursuant to Article 4 hereof;
(iii) failure on the part of the Servicer to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Seller or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer by the Indenture Trustee;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made in the 2021-A this Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to the 2021-A Servicing Agreement hereto shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Servicing Agreement will be an Exchange Note deemed to be "material" only if it affects the Noteholders, the enforceability of the Indenture or of the Notes; and provided, further, that a material breach of any representation or warranty made by the Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default in this Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that failure the Servicer repurchases such Lease and Equipment in accordance with this Servicing Agreement.
(v) the entry by a court having jurisdiction in the premises of (A) a decree or delay was caused by Force Majeure. Upon order for relief in respect of the occurrence Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations decree or order for relief or any such other decree or order unstayed and in effect for a timely manner in accordance with the terms period of the Basic Servicing Agreement and this 2021-A Servicing Supplement.60 consecutive days;
(bvi) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt commencement by the Servicer of notice a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of an Exchange Note Servicer Event any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of Default, all authority and power a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under this 2021-A Servicing Supplementany applicable federal or state bankruptcy, whether with respect insolvency, reorganization, or other similar law or to the Notescommencement of any bankruptcy or insolvency case or proceeding against it, or the Certificatesfiling by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant consent by it to the terms filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Basic Servicing Agreement. If Servicer or of any substantial part of its property, or the Indenture Trustee shall making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become Successor due, or the taking of corporate action by the Servicer pursuant to this Section, in furtherance of any such action; or
(vii) a final judgment or judgments (or decrees or orders) for the Indenture Trustee shall be entitled to appoint as sub-Servicer payment of money aggregating in excess of [$5,000,000] and any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer judgments (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basisdecrees or orders) upon presentation has remained unsatisfied and in effect for any period of reasonable documentation 60 consecutive days without a stay of such costs and expensesexecution.
Appears in 1 contract
Samples: Servicing Agreement (Charter Equipment Lease 1998-1 LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212017-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212017-A Exchange Note or to this 20212017-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212017-A Exchange Note under the Basic Servicing Agreement or this 20212017-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212017-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212017-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212017-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212017-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212017-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212017-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212017-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212017-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212017-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212017-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212017-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionSection 7.01(a), the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212017-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212017-A Bank Accounts or thereafter received with respect to the 20212017-A Leases and 20212017-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212017-A Leases and 20212017-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
(e) Notwithstanding Section 7.01(d), if the Indenture Trustee shall be unwilling so to act or if it is legally unable so to act, a Successor Servicer shall be appointed in accordance with Section 8.04 of the Basic Servicing Agreement. Compensation for any Successor Servicer shall not be greater than that payable to MBFS USA as initial Servicer hereunder without the prior consent of the Majority Noteholders of the Controlling Class (or Holders of Certificates representing not less than 51% of the aggregate Certificate Percentage Interests then outstanding if the Notes are no longer Outstanding). The Indenture Trustee and such successor shall take such action, consistent with this 2017-A Servicing Supplement, as shall be necessary to effectuate any such succession. The Indenture Trustee shall not be relieved of its duties as Successor Servicer under this Section until a newly appointed Servicer shall have assumed the obligations and duties of the terminated Servicer under this 2017-A Servicing Supplement. Notwithstanding anything to the contrary contained herein, in no event shall the Indenture Trustee be liable for any servicing fee or for any differential in the amount of the servicing fee paid hereunder, the amount necessary to induce any Successor Servicer to act as Successor Servicer hereunder, the responsibilities of the Servicer set forth in Sections 3.05 and 3.10 hereunder, or the obligations with respect to the payment or reimbursement of fees, expenses or other amounts (including indemnities other than those resulting from the actions of the Indenture Trustee as successor Servicer) of the Owner Trustee, the Indenture Trustee or the Asset Representations Reviewer, the fees and expenses of the Owner Trustee’s attorneys, the Indenture Trustee’s attorneys, or the Asset Representations Reviewer’s attorneys, the fees and expenses of any custodian and the fees and expenses of independent accountants or expenses incurred in connection with distributions and reports to the Noteholders.
Appears in 1 contract
Samples: 2017 a Servicing Supplement (Mercedes-Benz Auto Lease Trust 2017-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 45.75%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: February 2009 to January 2010 3.00 % February 2010 to January 2011 4.30 % February 2011 to January 2012 5.75 % February 2012 to January 2013 7.00 % February 2013 to January 2014 7.50 % February 2014 and thereafter 7.75 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies and 2021-A Vehicles and all information the Hedge Providers of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an shall constitute a “Exchange Note Servicer Event of Default” with respect to on the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) part of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementServicer:
(ia) any Any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its the terms, covenants or agreements on the part of the Servicer set forth in the 2021-A Servicing this Purchase Agreement, any Transfer Supplement or the Custodial Agreement (other than those set forth in clause (g) below) which failure materially and adversely affects continues unremedied for a period of sixty (60) days after the rights date on which the Servicer has actual knowledge or written notice of holders such failure;
(b) Any representation, warranty, statement or certification made by the Servicer shall prove to have been incorrect in any material respect as of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholderstime when made, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when madefor sixty (60) days after the date on which the Servicer has actual knowledge or written notice;
(c) Any failure by the Servicer to maintain any required licenses to do business in any jurisdiction where the Mortgaged Property is located, which failure has a material adverse effect on the ability of the Servicer to perform its functions under this Purchase Agreement or materially and adversely affects impairs the rights value of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the CertificateholdersMortgage Loans, and which continues to be unremedied for a period of sixty (60) days after the date on which the Servicer has actual knowledge or written notice of such failure;
(d) Application for the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, including bankruptcy, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and a decree or order shall have remained in force undischarged or unstayed for a period of sixty (60) days;
(e) The Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an assignment for the benefit of its creditors, voluntarily suspend payment of its obligations or cease its normal business operations other than in the ordinary course;
(f) The Company or any Affiliate thereof enters into a consent agreement or otherwise agrees in writing with any federal or state regulatory agency or authority to restrict its activities, if the default of such agreement by the Company or any Affiliate thereof entitles such applicable federal or state agency to place the Company in receivership or conservatorship;
(g) The failure on the part of the Servicer to make (x) any Monthly Advance required by it under this Purchase Agreement on or before the date such advance is required to be made or (y) any other payment or deposit required by it under this Purchase Agreement and such failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note three (3) Business Days after the date on which the Servicer Event has actual knowledge or written notice of Default if that failure or delay was caused by Force Majeure. Upon such failure;
(h) on the occurrence last Business Day of any such eventmonth, the Servicer will not be relieved from using aggregate of all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
Delinquent Loans is more than five percent (b) With respect to actions taken under Section 8.03(c5%) of the Basic Servicing Agreement after the occurrence aggregate of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021all non-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt prime home mortgage loans serviced by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and on such date which would be vested in the Indenture Trustee or such Successor Servicer “Delinquent Loans” as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.defined herein were they Mortgage Loans;
Appears in 1 contract
Samples: Mortgage Loan Purchase and Servicing Agreement (New Century Financial Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non- Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made; provided, which failure materially -------- however, that the breach of any representation or warranty made by the ------- Originator or Servicer in this Assignment and adversely Servicing Agreement will be deemed to be "material" only if it affects the rights of holders of interests in the 2021-A Exchange NoteNoteholders, the Noteholders orInsurer or the enforceability of the Indenture or of the Notes; and provided, in the event further, that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer a material breach of any representation or -------- ------- warranty made by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event Originator in this Assignment and Servicing Agreement with respect to any of the Servicer; providedLeases or the Equipment subject thereto will not constitute a Servicer Event of Default if the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, howeverinsolvency, that reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or the taking of corporate action by the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence existence of any such eventcondition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer and the Note Insurer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(ii) the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(iiiii) any failure by on the part of the Master Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer's property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021-A Servicing Agreement benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any certificate"event of default" under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Three Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, report or other writing delivered pursuant the Twelve Month Loss Amount exceeds 2.50% of the Aggregate Principal Balance of the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if the total stockholders' equity of the Master Servicer, as determined by the Master Servicer's independent accountants in accordance with generally accepted accounting principles, shall be less than the sum of (1) $30 million and (2) 75% of the net proceeds to the 2021Master Servicer of any initial public offering of its common stock;
(xi) if the total on- or off-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given balance sheet financing available to the Master Servicer by the Indenture Trustee; orshall be less than $400 million;
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agentsIndenture; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.or
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accred Home LNDRS Inc Ac Mor Ln Tr 2002-1 as Bk Nt Se 2002-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of to the Servicer has actual knowledge and Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%; provided however that any failed remittance cured within one Business Day of such failurefailure shall include interest accrued at the Prime Rate (as set forth in the Wall Street Journal) on the amount of such remittance from and including the date the remittance was required to be made to and including the date the remittance was actually made;
(ii) any the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by the Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Indenture Trustee; orServicer’s property;
(ivvi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) if on any Payment Date the Rolling Six Month Delinquency Ratio exceeds 14%;
(viii) if on any Payment Date, the Cumulative Realized Loss Percentage exceeds the following percentages on any Payment Date during the following periods: March 2005 - February 2006 1.75 % March 2006 - February 2007 3.50 % March 2007 - February 2008 5.00 % March 2008 and thereafter 6.00 %
(ix) the occurrence of an Insolvency Event of Default under the Indenture. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), if such payment is in respect of Delinquency Advances or Compensating Interest owing by the Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Servicer and the Indenture Trustee may, and upon request of the Holders representing more than 50% of the Class Note Balance, shall, terminate all of the rights and obligations of the Servicer under this Agreement, except for the Servicer’s indemnification obligation under Section 5.19, and the Indenture Trustee (if it is the successor servicer) or a successor servicer appointed in accordance with Section 7.02, shall immediately make such Delinquency Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iiiy) with respect to that portion of Section 7.01(a)(i) not referred to in the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only preceding clause (x) and with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause clauses (iii), (iiiii), (iv), (v), (vi) or and (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(cxii) of the Basic Servicing Agreement after the occurrence Section 7.01(a), upon receipt of an Exchange Note Servicer Event written notice or actual knowledge by a Responsible Officer of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the written direction of 66 2/3% rights and obligations of the Holders Servicer under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer; and (z) with respect to clauses (vii)-(ix) of Section 7.01(a), upon receipt of written notice or actual knowledge by a Responsible Officer of the Outstanding Amount Indenture Trustee, the Indenture Trustee shall, after notice in writing to the Servicer and a Responsible Officer of the Controlling Class) may waive any such Indenture Trustee, terminate all the rights and obligations of the Servicer Event of Default under this Agreement, except for the Servicer’s indemnification obligations under Section 5.19, and its consequencesin and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in another successor servicer, and another successor servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor servicer in effecting the termination of the Servicer’s responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor Servicer another successor servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information Mortgage Loans. The Indenture Trustee shall promptly notify the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Servicer’s compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2005-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non- Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or -------- ------- warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any -------- ------- representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) an involuntary petition or proceeding shall be filed (A) in respect of the Servicer under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) seeking a decree or order adjudging the Servicer bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and either (1) such petition shall not have been dismissed within a period of 60 consecutive days or (2) any such order for relief or decree shall be entered in any such proceeding, or any such receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be appointed;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the following events will be an “Exchange Note Servicer Event of Default” with respect to the 20212017-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 20212017-A Exchange Note or to this 20212017-A Servicing Supplement:
(i) any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 20212017-A Exchange Note under the Basic Servicing Agreement or this 20212017-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 20212017-A Servicing Agreement, which failure materially and adversely affects the rights of holders of interests in the 20212017-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 20212017-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 20212017-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 20212017-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 20212017-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 20212017-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 20212017-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 20212017-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 20212017-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 20212017-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionSection 7.01(a), the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 20212017-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 20212017-A Bank Accounts or thereafter received with respect to the 20212017-A Leases and 20212017-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 20212017-A Leases and 20212017-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Servicing Supplement (Mercedes-Benz Auto Lease Trust 2017-A)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Initial Purchaser by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Initial Purchaser or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.02 hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Initial Purchaser;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of thirty (30) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Initial Purchaser shall notify the Indenture Trustee; orTrustee of any "event of default" under the Purchase Agreement;
(ivviii) if at the end of any Collection Period, the Collateral Performance Ratio exceeds 4%;
(ix) the occurrence of an Insolvency Event with respect to of Default or an Amortization Event under the ServicerIndenture; provided, however, that or
(x) the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementExisting Warehouse Facility.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 9.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Initial Purchaser and the Indenture Trustee shall, with the consent of the Outstanding Amount Initial Purchaser, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 7.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 9.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 9.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 9.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 9.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Initial Purchaser or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Initial Purchaser, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 7.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 9.01(a), the Indenture Trustee shall, but only at the direction of the Initial Purchaser, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 7.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Initial Purchaser, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, and shall promptly notify the Successor Servicer shall not be liable if it cannot perform due to the failure Initial Purchaser of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.75% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Payment Date, commencing in December 2000, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Payment Date occurring before December 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Payment Date on or after December 1, 2000 and before December 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Payment Date on or after December 1, 2001 and before December 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Payment Date on or after December 1, 2002 and before December 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Payment Date on or after December 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event with respect to of Default under the ServicerIndenture; provided, however, that the occurrence of any event or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementSection 8.04 hereof.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 12.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Accounts;
(ix) if on any Payment Date, commencing in March 2001, the Twelve Month Loss Amount exceeds 2.50% of the sum of aggregate outstanding Principal Balance for the Mortgage Loans and any amount on deposit in the Pre-Funding Accounts, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if on any Payment Date, the occurrence of a Company Stockholders' Equity Trigger; and
(xi) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 5.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement, except for the Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made, including without limitation any Servicing Advance, by the 2021-A Exchange Note Servicer under the Basic Servicing terms of this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failureBasic Documents;
(ii) any failure by on the part of the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.02 hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days (or in the case of failure to pay insurance premiums, 15 days) after (x) actual knowledge thereof by the Servicer or (y) the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Purchaser;
(iii) any representationfailure by the Servicer to maintain any required licenses to do business in any jurisdiction where the property is located, warranty or statement which failure has a material adverse effect on the ability of the Servicer made in the 2021-A Servicing to perform its functions under this Agreement or any certificate, report or other writing delivered pursuant to materially impairs the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects value of the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the CertificateholdersMortgage Loans, and which failure continues to be unremedied for 90 a period of thirty (30) days after the date on which the Servicer has actual knowledge or written notice thereof is given of such failure;
(iv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of thirty (30) days;
(v) the Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations or cease its normal business operations;
(vii) the Note Purchaser shall notify the Indenture TrusteeTrustee of any "event of default" under the Purchase Agreement;
(viii) a Performance Trigger Event occurs;
(ix) the Servicer fails to be an Eligible Servicer;
(x) the Sponsor shall fail to either (i) possess sufficient net capital and liquid assets (or ability to access the same) to satisfy its debts and other obligations as they become due in the normal course of business, including a minimum balance of cash or cash equivalents no less than $25 million during the Commitment Term or (ii) maintain Net Worth of no less than $35 million;
(xi) the Sponsor defaults on any of its issued and outstanding subordinated indebtedness; or
(ivxii) the occurrence Sponsor shall fail to own, directly or indirectly (through its subsidiaries) ownership of an Insolvency Event with respect to 100% of the outstanding common stock of the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting upon receipt of written notice or discovery by a Responsible Officer of such failure, shall give immediate telephonic and facsimile notice of such failure to a Responsible Officer of the Servicer and to the Note Purchaser, and the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Purchaser or the Majority Noteholders, terminate all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Servicer under this Agreement, after except for the occurrence of an Exchange Note Servicer Event of DefaultServicer's indemnification obligation under Section 7.19, the 2021-A Exchange Noteholder (which for purposes of this Section shall be and the Indenture Trustee, acting at in its capacity as successor servicer, or a successor Servicer appointed in accordance with Section 9.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 9.02 hereof, the written direction duties of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequencesa successor Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 9.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Purchaser, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, in its capacity as successor servicer, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021Mortgage Loans. The Indenture Trustee shall promptly notify the Note Purchaser of the occurrence of a Servicer Event of Default.
(c) Upon the occurrence of an (i) Event of Default under any of the Basic Documents, (ii) a Servicer Event of Default under this Agreement, (iii) a material adverse change in the business or financial conditions of the Servicer (each, a "Term Event"), the Servicer's right to service the Mortgage Loans pursuant to the terms of this Agreement shall remain in effect for an initial period commencing on the date on which such Term Event occurred and shall automatically terminate at 5:00 p.m., New York City time, on the last Business Day of the calendar month in which such Term Event occurred (the "Initial Term"). Thereafter, the Initial Term shall be extendible in the sole discretion of the Note Purchaser by written notice (each, a "Servicer Extension Notice") of the Noteholder for successive one-A Leases and 2021-A Vehicles and all information or documents month terms (each such term ending at 5:00 p.m., New York City time ("EST"), on the last business day of the related month). Following a Term Event, the Servicer hereby agrees that the Indenture Trustee or such Successor Servicer may require, shall be bound for the duration of the Initial Term and the Successor term covered by any such Servicer Extension Notice to act as the Servicer pursuant to this Agreement and the Servicing Agreement. Following a Term Event, the Servicer agrees that if, as of 3:00 p.m. (EST) on the last business day of any month, the Servicer shall not be liable if it cannot perform due have received a Servicer Extension Notice from the Note Purchaser, the Servicer shall give written notice of such non-receipt to the Note Purchaser by 4:00 p.m. (EST). Following a Term Event, the failure of the predecessor Note Purchaser to deliver a Servicer to so deliverExtension Notice by 5:00 p.m. (EST) shall result in the automatic and immediate termination of the Servicer (the "Termination Date"). In additionNotwithstanding these time frames, the Servicer and the Note Purchaser shall comply with all applicable laws in connection with such transfer its electronic records relating and the Servicer shall continue to service the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation Mortgage Loans until completion of such costs and expensestransfer.
Appears in 1 contract
Samples: Sale and Servicing Agreement (American Business Financial Services Inc /De/)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Delinquency Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer’s property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any “event of default” under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, the Cumulative Loan Loss Percentage exceeds the following percentages on any Payment Date during the following periods: March 2004 - February 2006 1.70 % March 2006 - February 2007 2.50 % March 2007 - February 2008 3.20 % March 2008 and thereafter 4.50 %
(x) if the total stockholders’ equity of the Master Servicer, as determined by the Master Servicer’s independent accountants in accordance with generally accepted accounting principles, shall be less than $60 million;
(xi) if the total on- or off-A Servicing Agreement or any certificate, report or other writing delivered pursuant balance sheet financing available to the 2021-A Servicing Agreement Master Servicer shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteeless than $400 million; or
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Home Lenders Inc Mortgage Loan Trust 2004-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below), which continues unremedied for ten one (1) Business Days Day after the earlier date upon which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer and the Note Insurer by the Indenture Trustee or to the Servicer and the Indenture Trustee by the Note Insurer or Noteholders of Notes evidencing Percentage Interests of at least 25%;
(ii) the failure by the Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which (A) written notice of such failure is failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture Trustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(Biii) an Authorized Officer any failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its the covenants or agreements on the part of the Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Servicer by the Indenture TrusteeTrustee or to the Servicer and the Indenture Trustee by any Noteholder or the Note Insurer;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Servicer made and such decree or order shall have remained in force, undischarged or unstayed for a period of sixty (60) days;
(v) the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant Servicer shall consent to the 2021-A Servicing Agreement shall prove to be incorrect appointment of a conservator or receiver or liquidator in any material respect when madeinsolvency, which failure materially readjustment of debt, marshalling of assets and adversely affects the rights liabilities or similar proceedings of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given or relating to the Servicer by or of or relating to all or substantially all of the Servicer's property;
(vi) the Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee; orTrustee of any "event of default" under the Insurance Agreement;
(ivviii) if on any Distribution Date the Rolling Six Month Delinquency Rate exceeds 12.75% of the aggregate outstanding Principal Balance for the Mortgage Loans;
(ix) if on any Distribution Date, commencing in June 2000, the Twelve Month Loss Amount exceeds 1.75% of the aggregate outstanding Principal Balance for the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if (a) on any Distribution Date occurring before June 1, 2000, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.00% of the Original Pool Principal Balance, (b) on any Distribution Date on or after June 1, 2000 and before June 1, 2001, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 1.50% of the Original Pool Principal Balance, (c) on any Distribution Date on or after June 1, 2001 and before June 1, 2002, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 2.25% of the Original Pool Principal Balance, (d) on any Distribution Date on or after June 1, 2002 and before June 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.00% of the Original Pool Principal Balance, or (e) on any Distribution Date on or after June 1, 2003, the aggregate Cumulative Loan Losses since the Initial Cut-Off Date exceed 3.75% of the Original Pool Principal Balance;
(xi) the occurrence of an Insolvency Event with respect to of Default under the ServicerIndenture; provided, however, that the occurrence of any event or
(xii) a Servicer Extension Notice shall not have been delivered as set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementSection 8.04 hereof.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note So long as a Servicer Event of DefaultDefault shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(i), any actions to be taken if such payment is in respect of Periodic Advances or Compensating Interest owing by the 2021-A Exchange Noteholder thereunder shall be exercised Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Distribution Date, the Indenture Trustee, acting at the upon receipt of written direction notice or discovery by a Responsible Officer of 66 2/3% such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Holders Servicer and to the Note Insurer and the Indenture Trustee shall, with the consent of the Outstanding Amount Note Insurer, terminate all of the Controlling Class.
(c) In accordance with Section 8.05 rights and obligations of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of under this Section shall be Agreement and the Indenture Trustee, acting or a successor Servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest and assume, pursuant to Section 7.02 hereof, the duties of a successor Servicer; (y) with respect to that portion of Section 7.01(a)(i) not referred to in the preceding clause (x) and with respect to clauses (ii), (iii), (iv), (v), (vi) and (vii) of Section 7.01, the Indenture Trustee shall, but only at the written direction of 66 2/3% the Note Insurer or the Majority Noteholders, by notice in writing to the Servicer and a Responsible Officer of the Holders Indenture Trustee and subject to the prior written consent of the Outstanding Amount Note Insurer, in the case of any removal at the direction of the Controlling ClassMajority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as servicer; and (z) may waive any such with respect to clauses (viii)-(x) of Section 7.01(a), the Indenture Trustee shall, but only at the direction of the Note Insurer, after notice in writing to the Servicer Event and a Responsible Officer of Default the Indenture Trustee, terminate all the rights and its consequencesobligations of the Servicer under this Agreement and in and to the Mortgage Loans and the proceeds thereof, as Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Trustee, or such Successor Servicer as may be appointed pursuant to its designee approved by the terms of the Basic Servicing Agreement. If Note Insurer, and the Indenture Trustee shall become Successor is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, at the expense of the Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. The Servicer pursuant agrees to this Section, cooperate (and pay any related costs and expenses) with the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Trustee, or such Successor Servicer its designee, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Mortgage Loans. The Indenture Trustee or such Successor Servicer may require, shall promptly notify the Note Insurer and the Successor Servicer shall not be liable if it cannot perform due to the failure Rating Agencies of the predecessor occurrence of a Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any Any failure by the Servicer to deliver to the Indenture Trustee for payment to the Certificateholders any proceeds or payment payments received from a Customer or in respect of the Trust Property and when required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Trust and Security Agreement or and this 2021-A Servicing Supplement Agreement that continues unremedied for ten until 10:00 a.m., Minneapolis time, on the second successive Business Days after Day, provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any Any failure by the Servicer to deliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 10:00 a.m., Minneapolis
(iii) Any failure by the Servicer to make a Servicer Advance pursuant to Section 3.04 hereof or to deposit any Purchase Price received by it that continues unremedied until 10:00 a.m., Minneapolis time, the following Business Day; provided, however, that if the Servicer has not made the Servicer Advance or deposited any Purchase Price received by it by 12:00 noon, Minneapolis time, on the Determination Date and the Trustee has received written notification from the Servicer by way of the Monthly Servicer's Report or otherwise that such Servicer Advance or Purchase Price is to be paid, the Trustee shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) Any failure by the Servicer to make remittances or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 10:00 a.m., Minneapolis time, of the third successive Business Day; or
(v) Any failure on the part of the Servicer duly to observe or perform in any material respect any other of its covenants or agreements of the Servicer, set forth in this Agreement or the 2021-A Servicing Trust and Security Agreement, as the case may be, or any representation or warranty of the Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect, which failure or breach (A) materially and adversely affects the interest or rights of holders of interests in the 2021-A Exchange NoteBond Insurer, the Noteholders or, in the event that Certificates are sold to unaffiliated third partiesTrustee, the Certificateholders, Back up Servicer or the Certificateholders and which (B) continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach or written notice thereof is of such failure or breach, requiring the situation giving rise to such breach or non-conformity to be remedied, shall have been given to a Servicing Officer of the Servicer by the Indenture Trustee;
(iii) any representation, warranty the Bond Insurer, the Transferor, or statement the Back-up Servicer, or to a Servicing Officer of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteServicer, the Noteholders or, in Bond Insurer and the event that Certificates are sold to unaffiliated third parties, Trustee by the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(ivvi) Any assignment by the Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) The entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or the ordering of the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(viii) The commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshalling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer or relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay its debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) The occurrence of an Insolvency a Trigger Event with respect to if the initial Servicer is the Servicer; provided, however, that the occurrence of any event set forth in clauses .
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note So long as a Servicer Event of Default only with respect shall not have been remedied within the period set forth in (i), (ii), (iii), (iv), (v) or (vii) above, as applicable, the Trustee, at the direction of the Bond Insurer shall, or if there has been a Bond Insurer Default, the Trustee, the Transferor, or the Back-up Servicer may, by notice (the "Servicer Termination Notice") then given in writing to the 2021Servicer and the Back-A Reference Pool up Servicer, terminate all, but not less than all, of the rights and will not be a obligations of the Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolunder this Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSection 6.01(a)(v) or (iii) hereof for a period of 120 30 or more days will shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeureacts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes. Upon the occurrence of any such event, The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of Servicer shall provide the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction Back-up Servicer, the Bond Insurer, the Transferor and the Certificateholders with prompt notice of 66 2/3% such failure or delay by it, together with a description of the Holders of the Outstanding Amount of the Controlling Classits efforts to so perform its obligations.
(c) In accordance with Section 8.05 the event of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event a Trigger Event, the Trustee shall, at the direction of the Bond Insurer, or if there has been a Bond Insurer Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% Transferor, or the Back-up Servicer may, by Servicer Termination Notice then given in writing to the Servicer and the Back-up Servicer, terminate all but not less than all of the Holders rights and obligations of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of under this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Certificates or the Certificates, the Trust Estate Lease Contracts or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to the terms Section 6.02 hereof, and, without termination, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Basic Servicing Agreement. If Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions purposes of such Affiliate notice of termination, whether to complete the transfer of the Lease Contracts and related documents, or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee Back-up Servicer and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to Lease Contracts. To assist the 2021-A Leases successor Servicer in enforcing all rights under the Lease Contracts and 2021-A Vehicles the Insurance Polices to the extent they relate to the Lease Contracts, the outgoing Servicer, at its own expense, shall transfer its records (electronic and otherwise) relating to such Lease Contracts to the successor Servicer in such form as the successor Servicer may reasonably request and shall transfer the related Lease Contracts (to the extent not held by the Trustee) and all information or other records, correspondence and documents relating to the Lease Contracts that it may possess to the Indenture Trustee or successor Servicer in the manner and at such Successor Servicer may require, and times as the Successor successor Servicer shall not be liable if it cannot perform due reasonably request. In addition to any other amounts that are then payable to the failure of the predecessor Servicer to so deliver. In additionunder this Agreement, the Servicer shall transfer its electronic records relating be entitled to receive reimbursements for any unreimbursed Servicer Advance made during the period prior to the 2021-A Leases delivery of a Servicer Termination Notice pursuant to this Section 6.01 which terminates the obligations and 2021-A Vehicles to right of the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesunder this Agreement.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Each of the following events will be an shall constitute a “Exchange Note Servicer Event of Default” with respect to on the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) part of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementServicer:
(ia) any Any failure by the Servicer to deliver to the Indenture Trustee any proceeds or payment required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its the terms, covenants or agreements on the part of the Servicer set forth in the 2021-A this Mortgage Loan Purchase and Servicing Agreement, any Transfer Supplement or the Custodial Agreement (other than those set forth in clause (i) below) which failure materially and adversely affects continues unremedied for a period of forty-five (45) days after the rights date on which the Servicer has actual knowledge or written notice of holders such failure;
(b) Any representation, warranty, statement or certification made by the Servicer shall prove to have been incorrect in any material respect as of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholderstime when made, and which continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee;
(iii) any representation, warranty or statement of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when madefor forty-five (45) days after the date on which the Servicer has actual knowledge or written notice of such incorrect representation, warranty, statement or certification;
(c) Any failure by the Servicer to maintain any required licenses to do business in any jurisdiction where the Mortgaged Property is located, which failure has a material adverse effect on the ability of the Servicer to perform its functions under this Mortgage Loan Purchase and Servicing Agreement or materially and adversely affects impairs the rights value of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the CertificateholdersMortgage Loans, and which failure continues to be unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 forty-five (45) days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon after the occurrence of any such event, date on which the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms has actual knowledge or written notice of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.failure;
(d) On Application for the appointment of a conservator or after receiver or liquidator in any insolvency, readjustment of debt, including bankruptcy, marshalling of assets and liabilities or similar proceedings, or for the receipt winding-up or liquidation of its affairs, shall have been entered against the Servicer and, if such proceeding is being contested by the Servicer in good faith, such decree or order shall have remained in force undischarged or unstayed for a period of notice forty-five (45) days;
(e) The Servicer shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency, bankruptcy or reorganization statute, make an Exchange Note Servicer Event assignment for the benefit of Defaultits creditors, all voluntarily suspend payment of its obligations or cease its normal business operations for six (6) Business Days;
(f) The Company or Performance Guarantor or any Affiliate thereof enters into a consent agreement or otherwise agrees in writing with any federal or state regulatory agency or authority and power to restrict its activities, if the default of such agreement by the Company or Performance Guarantor or any Affiliate thereof entitles such applicable federal or state agency to place the Company or Performance Guarantor in receivership or conservatorship;
(g) The Company or Performance Guarantor shall fail to pay (after expiration of any applicable grace period) (i) any of its debt obligations in excess of the Servicer under this 2021-A Servicing Supplement, whether with respect to lesser of (x) $5,000,000 and (y) 2% of shareholder’s equity of the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested Performance Guarantor in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.aggregate or
Appears in 1 contract
Samples: Mortgage Loan Purchase and Servicing Agreement (Accredited Home Lenders Holding Co)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any Any of the following events will be an “Exchange Note acts or occurrences shall constitute a Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement:
(i) any failure by the Servicer (A) to deliver to the Indenture Local Bank for deposit in the Local Bank Account or (B) to deliver or cause to be delivered to the Trustee for deposit in the Collection Account any proceeds or payment payments received from an Obligor or in respect of the Trust Estate and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing terms of the Indenture and this Agreement or this 2021-A Servicing Supplement that continues unremedied for ten until 2:00 p.m., New York time, on the second successive Business Days after Day following such failure; or provided, however, that the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has Trustee, upon receiving actual knowledge of such failure;, shall give the Servicer prompt written, telecopied or telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(ii) any failure by the Servicer to duly observe or perform in any material respect any other of its covenants or agreements in the 2021-A Servicing Agreementdeliver a Monthly Servicer's Report pursuant to Section 4.01 hereof that continues unremedied until 2:00 p.m., which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange NoteNew York time, the Noteholders orfollowing Business Day; provided, in however, that if the event Trustee has actual knowledge that Certificates are sold to unaffiliated third partiesthe Servicer has not delivered such Monthly Servicer's Report by 2:00 p.m., New York time, on a Determination Date, the CertificateholdersTrustee shall give the Servicer written, and which continues unremedied for 90 days after written telecopied or telephonic notice thereof is given of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer by shall not prevent the Indenture Trustee;occurrence of a Servicer Event of Default; or
(iii) any representationfailure by the Servicer to remit any Purchase Price received by it to the Trustee that continues unremedied until 5:00 p.m., warranty New York time, the following Business Day; provided, however, that if the Servicer has not remitted any Purchase Price received by it to the Trustee by 3:00 p.m., New York time, on the Determination Date and the Trustee has actual knowledge that such Purchase Price has not been paid, the Trustee shall give the Servicer prompt written, telecopied or statement telephonic notice of such failure. Notwithstanding the foregoing, any failure by the Trustee to deliver such notice to the Servicer shall not prevent the occurrence of a Servicer Event of Default; or
(iv) any failure by the Servicer to make remittances (other than a remittance of Purchase Price referred to in clause (iii) above) or deliver notices pursuant to Section 3.03 hereof, that continues unremedied until 2:00 p.m., New York time, of the second successive Business Day; or
(v) any failure on the part of the Servicer made duly to observe or perform any other covenants or agreements of the Servicer set forth in the 2021-A Servicing this Agreement or the Indenture or any certificate, report representation or other writing delivered pursuant to warranty of the 2021-A Servicing Servicer set forth in Section 2.01 of this Agreement shall prove to be incorrect in any material respect when maderespect, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure or breach continues unremedied for 90 a period of 30 days after the date on which the Servicer becomes aware of such failure or breach, or receives written notice thereof is given to the Servicer by the Indenture Trusteeof such failure or breach; or
(ivvi) any assignment by the Servicer to a delegate of its duties or rights under this Agreement, except as specifically permitted hereunder, or any attempt to make such an assignment; or
(vii) the entry of a decree or order for relief by a court having jurisdiction in respect of the Servicer or a petition against the Servicer in an involuntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for the Servicer or for any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Servicer and the continuance of any such decree or order unstayed and in effect, or failure for such petition to be dismissed, for a period of 60 consecutive days; or
(viii) the commencement by the Servicer of a voluntary case under any federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency, reorganization or similar law, or the consent by the Servicer to the appointment of or taking possession by a conservator, receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official in any insolvency, readjustment of debt, marshaling of assets and liabilities, bankruptcy or similar proceedings of or relating to the Servicer relating to a substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer generally to pay its debts as such debts become due or if the Servicer shall admit in writing its inability to pay their debts as they become due, or the taking of corporate action by the Servicer in furtherance of any of the foregoing; or
(ix) the stockholders' equity of the Servicer and its consolidated subsidiaries, determined in accordance with generally accepted accounting principles, as would be shown on a consolidated balance sheet for such Persons, is below $50,000,000; or
(x) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses a Trigger Event.
(ib) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note If a Servicer Event of Default only with respect shall have occurred and be continuing, the Trustee shall, upon written direction of the Holders of Notes representing not less than 66-2/3% in principal amount of the Outstanding Notes of the Controlling Class, by notice (the "Servicer Termination Notice") given in writing to the 2021-A Reference Pool Servicer terminate all, but not less than all, of the rights and will not be a obligations (except as expressly provided herein) of the Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Poolunder this Agreement. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (iiSections 6.01(a)(ii) or (iii6.01(a)(v) hereof for a period of 120 more than 30 or more days will shall not constitute an Exchange Note a Servicer Event of Default if that such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or delay failure was caused by Force Majeure. Upon the occurrence acts of declared or undeclared war, public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes; provided, however, that in any such event, such delay or failure shall constitute a Servicer Event of Default if it continues unremedied for a period of 30 days. The preceding sentence shall not relieve the Servicer will not be relieved from using all commercially reasonable its best efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of Servicer shall provide the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction Issuer and the Noteholders with prompt notice of 66 2/3% such failure or delay by it, together with a description of the Holders of the Outstanding Amount of the Controlling Classits efforts to so perform its obligations.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note a Servicer Event of DefaultTermination Notice, all authority and power of the Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, Notes or the Certificates, the Trust Estate Contracts or otherwise, shall, without further action, shall pass to and be vested in the Indenture Trustee or such Successor successor Servicer as may be appointed pursuant to Section 6.02 hereof, and, without limitation, such successor Servicer is hereby authorized and empowered to execute and deliver, on behalf of such Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the terms purposes of such notice of termination, whether to complete the transfer of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this SectionContracts and related documents, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicerotherwise. The outgoing Servicer shall agrees to cooperate with the Indenture Trustee, the Owner Trustee and such Successor the successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee or such Successor successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts Servicer or thereafter received with respect to Contracts. To assist the 2021-A Leases and 2021-A Vehicles and successor Servicer in enforcing all information rights under the Contracts, the outgoing Servicer, at its own expense (including, without limitation, any costs or documents that expenses associated with the Indenture Trustee or such Successor Servicer may require, complete transfer of all servicing data and the Successor completion, correction or manipulation of such servicing data as may be required by the successor Servicer shall not be liable if it cannot perform due to correct any errors or insufficiencies in the servicing data or otherwise to enable the successor Servicer to service the Contracts properly and effectively to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor successor Servicer in such electronic form as the Successor successor Servicer may reasonably request. All Transition Costs ), shall be paid transfer its records (electronic and otherwise) relating to such Contracts and shall transfer the related Contracts (to the extent not held by the outgoing Trustee) and all other records, correspondence and documents relating to the Contracts that it may possess to the successor Servicer (or by in the initial manner and at such times as the successor Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesshall reasonably request.
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an shall each constitute a “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementhereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Periodic Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iiiiv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any representationpresent or future federal or state bankruptcy, warranty insolvency or statement similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer’s property;
(vi) the Master Servicer made shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the 2021benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any “event of default” under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, the Twelve Month Loss Amount exceeds 2.50% of the Aggregate Principal Balance of the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if the total stockholders’ equity of the Master Servicer, as determined by the Master Servicer’s independent accountants in accordance with generally accepted accounting principles, shall be less than $60 million;
(xi) if the total on- or off-A Servicing Agreement or any certificate, report or other writing delivered pursuant balance sheet financing available to the 2021-A Servicing Agreement Master Servicer shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trusteeless than $400 million; or
(ivxii) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence of any event set forth in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to under the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing SupplementIndenture.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan Trust 2003-2)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement or other Transaction Document which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report Transaction Document or in any certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment or substitutes a Substitute Lease therefor in accordance with this Assignment and Servicing Agreement;
(v) an involuntary petition or proceeding shall be filed (A) in respect of the Servicer under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) seeking a decree or order adjudging the Servicer bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and either (1) such petition shall not have been dismissed within a period of 60 consecutive days or (2) any such order for relief or decree shall be entered in any such proceeding, or any such receiver, liquidator, assignee, trustee, sequestrator or other similar official shall be appointed;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other recourse obligations of the Servicer exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power recourse obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-performance;
(viii) a final judgment or judgments (or decrees or orders) against the Servicer for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) for any three consecutive Due Periods, the Indenture Trustee in its capacity as Servicer average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.0%; or
(x) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 9.0%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables Funding LLC)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an and conditions shall constitute “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of upon their occurrence at any time on or after the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplementinitial Transfer Date:
(i) failure on the part of the Servicer to remit to the Indenture Trustee any amount required to be remitted under this Agreement within the time period required under this Agreement; provided, however that the failure by of the Indenture Trustee to accept any remittance from the Servicer shall not constitute a Servicer Event of Default;
(ii) failure on the part of the Servicer to deliver to the Indenture Trustee appropriate party any proceeds financial statement or payment management report required to be so delivered with respect under this Agreement within fifteen (15) Business Days of when required to be delivered under this Agreement;
(iii) (A) failure on the 2021-A Exchange Note under part of the Basic Servicing Agreement Servicer to deliver a Servicer Report within five (5) Business Days of the date required pursuant to Section 3.05 hereof or this 2021-A Servicing Supplement that continues unremedied (B) the Servicer delivers a Servicer Report which is materially incorrect and the Servicer fails to correct such inaccuracy for ten a period of five (5) Business Days after the earlier of (x) the date on which Servicer becoming aware of such inaccuracy or (Ay) the giving of written notice of such failure is given inaccuracy (I) to the Servicer by the Indenture Trustee or (BII) an Authorized Officer to the Servicer and the Indenture Trustee by a Global Requisite Majority of Noteholders;
(iv) failure on the part of the Servicer has actual knowledge of such failure;
(ii) any failure by the Servicer duly to duly observe or perform in any material respect any other of its respective covenants or agreements in the 2021-A Servicing Agreement, this Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of thirty (30) days after the earlier of (x) any officer of the Servicer becoming aware of such failure or (y) the giving of written notice thereof is given of such failure (I) to the Servicer by the Indenture TrusteeTrustee or (II) to the Servicer and the Indenture Trustee by a Global Requisite Majority of Noteholders;
(iiiv) if any representation, representation or warranty or statement of the Servicer made in the 2021-A Servicing this Agreement or in any certificate, report certificate or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be hereto or any other Related Documents is incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects ;
(vi) the rights of holders of interests entry by a court having jurisdiction in the 2021premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Servicer, or arrangement or adjustment of the Servicer’s assets, of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding-A Exchange Note, up or liquidation of the Noteholders or, in affairs of the event that Certificates are sold to unaffiliated third parties, the CertificateholdersServicer, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence continuance of any event set forth such decree or order for relief or any such other decree or order unstayed and in clauses (i) through (iii) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) effect for a period of 120 days will not constitute ninety (90) consecutive days;
(vii) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Servicer to the entry of a decree or order for relief in respect of the Servicer in an Exchange Note involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Servicer, or the filing by the Servicer Event of Default if that a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by the Servicer to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by the Servicer of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the occurrence Servicer in furtherance of any such eventaction;
(viii) any assignment by the Servicer, or any attempt by the Servicer will not be relieved from using all commercially reasonable efforts to perform assign its obligations in a timely manner in accordance with the terms duties or rights hereunder, except as specifically permitted hereunder;
(ix) Tangible Net Worth of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
Xxxxxx Companies shall at any time be less than the sum of: (bi) With respect to actions taken under Section 8.03(c$75,000,000; plus (ii) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Defaultif positive, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/375% of the Holders cumulative Net Income of the Outstanding Amount Xxxxxx Companies for each fiscal quarter earned from and after December 31, 2000 (without any deduction for net losses for any fiscal quarter); plus (iii) 75% of the Controlling Class.
net proceeds received by Servicer from the issuance of common stock or preferred stock of Servicer after January 1, 2001; (c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiverclause (ix), the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to following terms shall have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power of the Servicer under this 2021-A Servicing Supplement, whether with respect to the Notes, the Certificates, the Trust Estate or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer in effecting the termination of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expenses.following meanings:
Appears in 1 contract
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the I. The following events will be an “Exchange Note shall each constitute a "Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing Supplement" hereunder:
(i) any failure by the Master Servicer to deliver remit to the Indenture Trustee any proceeds or payment required to be so delivered with respect to made by the 2021-A Exchange Note Master Servicer under the Basic terms of this Agreement (other than Servicing Agreement or this 2021-A Servicing Supplement that Advances covered by clause (ii) below and Periodic Advances, which shall have no cure period), which continues unremedied for ten one (1) Business Days Day after the earlier of the date on upon which (A) notice of such failure is failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or (B) an Authorized Officer to the Master Servicer and Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of the Servicer has actual knowledge of such failureat least 25%;
(ii) any the failure by the Master Servicer to make any required Servicing Advance, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture Trustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iii) any failure on the part of the Master Servicer duly to observe or perform in any material respect any other of its the covenants or agreements on the part of the Master Servicer contained in the 2021-A Servicing this Agreement, which or the failure materially of any representation and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold warranty made pursuant to unaffiliated third parties, the Certificateholders, Section 3.01(a) hereof to be true and correct which continues unremedied for 90 a period of thirty (30) days after the date on which written notice thereof is of such failure, requiring the same to be remedied, shall have been given to the Master Servicer by the Indenture TrusteeTrustee or to the Master Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(iv) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Master Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(v) the Master Servicer shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Master Servicer or of or relating to all or substantially all of the Master Servicer's property;
(vi) the Master Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations;
(vii) the Note Insurer shall notify the Indenture Trustee of any "event of default" under the Insurance Agreement;
(viii) if on any Payment Date the Rolling Six Month Delinquency Rate exceeds 14.0%;
(ix) if on any Payment Date, the Twelve Month Loss Amount exceeds 2.50% of the Aggregate Principal Balance of the Mortgage Loans, as of the close of business on the first day of the twelfth preceding calendar month;
(x) if the total stockholders' equity of the Master Servicer, as determined by the Master Servicer's independent accountants in accordance with generally accepted accounting principles, shall be less than $40 million;
(xi) if the total on- or off-balance sheet financing available to the Master Servicer shall be less than $400 million; or
(xii) the occurrence of an Event of Default under the Indenture; II The following events shall each constitute a "Backup Servicer Event of Default" hereunder:
(i) any failure on the part of the Backup Servicer duly to observe or perform in any material respect any other of the covenants or agreements on the part of the Backup Servicer contained in this Agreement, or the failure of any representation and warranty made pursuant to Section 3.03(a) hereof to be true and correct which continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Backup Servicer by the Indenture Trustee or to the Backup Servicer and the Indenture Trustee by the Note Insurer or Noteholders affected thereby evidencing Percentage Interests of at least 25%;
(ii) a decree or order of a court or agency or supervisory authority having jurisdiction in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or for the appointment of a conservator or receiver or liquidation in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against the Backup Servicer and such decree or order shall have remained in force, undischarged or unstayed for a period of ninety (90) days;
(iii) the Backup Servicer shall consent to the appointment of a conservator or receiver or liquidator in any representationinsolvency, warranty readjustment of debt, marshalling of assets and liabilities or statement similar proceedings of or relating to the Backup Servicer or of or relating to all or substantially all of the Servicer made in the 2021-A Servicing Agreement or any certificate, report or other writing delivered pursuant to the 2021-A Servicing Agreement shall prove to be incorrect in any material respect when made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture TrusteeBackup Servicer's property; orand
(iv) the occurrence Backup Servicer shall admit in writing its inability generally to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an Insolvency assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations. So long as a Servicer Event of Default shall have occurred and not have been remedied: (x) with respect solely to Section 7.01(a)(I)(i), if such payment is in respect of Periodic Advances or Compensating Interest owing by the Master Servicer and such payment is not made by 12:00 noon New York time on the second Business Day prior to the applicable Payment Date, the Indenture Trustee, upon receipt of written notice or discovery by a Responsible Officer of the Indenture Trustee of such failure, shall give immediate telephonic and facsimile notice of such failure to a Servicing Officer of the Master Servicer and the Backup Servicer and to the Note Insurer, and the Indenture Trustee may, with the consent of the Note Insurer, and shall, at the direction of the Note Insurer, terminate all of the rights and obligations of the Master Servicer under this Agreement, except for the Master Servicer's indemnification obligation under Section 5.19, and the Backup Servicer, the Indenture Trustee (if it is the successor master servicer) or a successor master servicer appointed in accordance with Section 7.02, shall immediately make such Periodic Advance or payment of Compensating Interest as provided in Section 7.02 and assume, pursuant to Section 7.02 hereof, the duties of a successor master servicer; (y) with respect to that portion of Section 7.01(a)(I)(i) not referred to in the Servicer; providedpreceding clause (x) and with respect to clauses (ii), however(iii), that the occurrence (iv), (v), (vi), (vii) and (xii) of any event set forth in Section 7.01(a)(I) or clauses (i) through (iiiiv) of Section 7.01(a)(II), upon receipt of written notice or actual knowledge by a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall, but only at the direction of the Note Insurer or the Majority Noteholders, by notice in writing to the Master Servicer, the Backup Servicer and a Responsible Officer of the Indenture Trustee and subject to the prior written consent of the Note Insurer in the case of any removal at the direction of the Majority Noteholders, and in addition to whatever rights such Noteholders may have at law or equity to damages, including injunctive relief and specific performance, terminate all the rights and obligations of the Master Servicer or Backup Servicer, as applicable, under this Agreement, except for the Master Servicer's indemnification obligations under Section 5.19, and in and to the Mortgage Loans and the proceeds thereof, as Master Servicer; and (z) with respect to the 2021-A Reference Pool will be an Exchange Note Servicer Event clauses (viii)-(xi) of Default only with respect to the 2021-A Reference Pool and will not be a Servicer Event Default with respect to any other Reference Pool or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (iSection 7.01(a)(I), (ii) upon receipt of written notice or (iii) for actual knowledge by a period Responsible Officer of 120 days will not constitute an Exchange Note Servicer Event of Default if that failure or delay was caused by Force Majeure. Upon the occurrence of any such event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting the Indenture Trustee shall, but only at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing AgreementNote Insurer, after notice in writing to the occurrence of an Exchange Note Servicer Event of DefaultMaster Servicer, the 2021-A Exchange Noteholder (which for purposes Backup Servicer and a Responsible Officer of this Section shall be the Indenture Trustee, acting at terminate all the written direction of 66 2/3% rights and obligations of the Holders of Master Servicer under this Agreement, except for the Outstanding Amount of Master Servicer's indemnification obligations under Section 5.19, and in and to the Controlling Class) may waive any such Servicer Event of Default Mortgage Loans and its consequencesthe proceeds thereof, as Master Servicer. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent or other event or impair any right consequent thereon.
(d) On or after the receipt by the Master Servicer of notice of an Exchange Note Servicer Event of Defaultsuch written notice, all authority and power of the Master Servicer under this 2021-A Servicing SupplementAgreement, whether with respect to the Notes, the Certificates, the Trust Estate Mortgage Loans or otherwise, shall, without further actionsubject to Section 7.02, pass to and be vested in the Indenture Trustee Backup Servicer, or such Successor another successor master servicer selected by the Note Insurer, and the Backup Servicer as may be appointed pursuant or another successor master servicer is hereby authorized and empowered to the terms execute and deliver, on behalf of the Basic Servicing AgreementMaster Servicer, as attorney-in-fact or otherwise, at the expense of the Master Servicer, any and all documents and other instruments and do or cause to be done all other acts or things necessary or appropriate to effect the purposes of such notice of termination, including, but not limited to, the transfer and endorsement or assignment of the Mortgage Loans and related documents. If The Master Servicer agrees to cooperate (and to pay any related costs and expenses) with the Indenture Trustee shall become Successor and the Backup Servicer pursuant to this Section, the Indenture Trustee shall be entitled to appoint as sub-Servicer any one of its Affiliates or agents; provided that the Indenture Trustee in its capacity as Servicer shall be fully liable for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trustee, the Owner Trustee and such Successor Servicer another successor master servicer in effecting the termination of the Master Servicer's responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplementhereunder, including including, without limitation, the transfer to the Indenture Trustee Backup Servicer or such Successor Servicer another successor master servicer, for administration by it of all cash amounts that which shall at the time be held credited by the outgoing Master Servicer for deposit, or have been deposited by to the outgoing Servicer, in the 2021-A Bank Accounts Collection Account or thereafter received with respect to the 2021-A Leases Mortgage Loans. The Indenture Trustee shall promptly notify the Note Insurer and 2021-A Vehicles and all information the Rating Agencies of the occurrence of a Servicer Event of Default upon discovery or documents that receipt of notice by a Responsible Officer of the Indenture Trustee; provided, however, the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due obligated to monitor the failure Master Servicer's compliance with the terms hereof or to determine the occurrence of the predecessor any Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation Event of reasonable documentation of such costs and expensesDefault.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Accredited Mort Loan Trust Asset Back Notes Series 2003-1)
Servicer Events of Default. (a) Notwithstanding Section 8.03 of the Basic Servicing Agreement, only the occurrence and continuation of any of the The following events will be an “Exchange Note Servicer Event of Default” with respect to the 2021-A Exchange Note, and the “Exchange Note conditions shall constitute Servicer Events of Default” set forth in Section 8.03(a) of the Basic Servicing Agreement shall not apply to the 2021-A Exchange Note or to this 2021-A Servicing SupplementDefault hereunder:
(i) failure on the part of the Servicer to deposit to the Collection Account, or other applicable account in accordance with the terms of the Indenture within three Business Days following the receipt thereof any failure monies received by the Servicer to deliver to the Indenture Trustee (including, without limitation, any proceeds Lease Payments on Performing Leases or payment Non-Performing Leases) and required to be so delivered with respect to the 2021-A Exchange Note under the Basic Servicing Agreement or this 2021-A Servicing Supplement that continues unremedied for ten Business Days after the earlier of the date on which (A) notice of such failure is given to the Servicer by the Indenture Trustee or (B) an Authorized Officer of the Servicer has actual knowledge of such failuredeposited thereunder and hereunder;
(ii) failure on the part of the Servicer to pay to the Trustee on the date when due in accordance with the terms hereof, any failure payment required to be made by the Servicer pursuant to duly Section 5 hereof;
(iii) failure on the part of either the Servicer or (so long as the Originator is the Servicer) the Originator to observe or perform in any material respect any other of its their respective covenants or agreements in the 2021-A this Assignment and Servicing Agreement, Agreement which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which continues unremedied for 90 a period of 30 days after the earlier of (A) the date it first becomes known to any officer of the Originator or the Servicer, as the case may be, and (B) the date on which written notice thereof is requiring the same to be remedied shall have been given to the Servicer Originator or the Servicer, as the case may be, by the Indenture Trustee, or to the Originator or the Servicer, as the case may be, and the Trustee by the Seller, the Issuer, the Insurer or any holder of the Notes;
(iiiiv) if any representation, representation or warranty or statement of made by the Servicer made Originator in the 2021-A this Assignment and Servicing Agreement or in any certificate, report certificate or other writing delivered pursuant to hereto or made by any successor Servicer in connection with such successor Servicer's assumption of the 2021-A Servicing Agreement duties of the Servicer shall prove to be incorrect in any material respect as of the time when the same shall have been made, which failure materially and adversely affects the rights of holders of interests in the 2021-A Exchange Note, the Noteholders or, in the event that Certificates are sold to unaffiliated third parties, the Certificateholders, and which failure continues unremedied for 90 days after written notice thereof is given to the Servicer by the Indenture Trustee; or
(iv) the occurrence of an Insolvency Event with respect to the Servicer; provided, however, that the occurrence breach of any event set forth representation or warranty made by the Originator or Servicer in clauses (i) through (iii) with respect to the 2021-A Reference Pool this Assignment and Servicing Agreement will be an Exchange Note Servicer Event deemed to be "material" only if it affects the Noteholders, the Insurer or the enforceability of Default only with respect to the 2021-A Reference Pool Indenture or of the Notes; and will not be provided, further, that a Servicer Event Default material breach of any representation or warranty made by the Originator in this Assignment and Servicing Agreement with respect to any other Reference Pool of the Leases or the Revolving Facility Pool. Notwithstanding the foregoing, a delay in or failure of performance referred to under clause (i), (ii) or (iii) for a period of 120 days Equipment subject thereto will not constitute an Exchange Note a Servicer Event of Default if that the Originator purchases such Lease and the Issuer's interest in the Equipment in accordance with this Assignment and Servicing Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or (B) a decree or order adjudging the Servicer bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment, or composition of or in respect of the Servicer under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of the Servicer or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Servicer of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Servicer in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of the Servicer or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the failure by the Servicer to pay its debts generally as they become due, or delay was caused the taking of corporate action by Force Majeure. Upon the Servicer in furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due with respect to aggregate recourse debt or other obligations exceeding $5,000,000, or the occurrence of any such eventevent or the existence of any condition, the Servicer will not be relieved from using all commercially reasonable efforts effect of which event or condition is to perform its obligations in a timely manner in accordance with the terms cause (or permit one or more Persons to cause) more than $5,000,000 of the Basic Servicing Agreement and this 2021-A Servicing Supplement.
(b) With respect to actions taken under Section 8.03(c) of the Basic Servicing Agreement after the occurrence of an Exchange Note Servicer Event of Default, any actions to be taken by the 2021-A Exchange Noteholder thereunder shall be exercised by the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class.
(c) In accordance with Section 8.05 of the Basic Servicing Agreement, after the occurrence of an Exchange Note Servicer Event of Default, the 2021-A Exchange Noteholder (which for purposes of this Section shall be the Indenture Trustee, acting at the written direction of 66 2/3% of the Holders of the Outstanding Amount of the Controlling Class) may waive any such Servicer Event of Default and its consequences. Upon any such waiver, the applicable Exchange Note Servicer Event of Default will cease to exist, and will be deemed to have been remedied for every purpose of this Agreement. No such waiver will extend to any subsequent aggregate recourse debt or other event or impair any right consequent thereon.
(d) On or after the receipt by the Servicer of notice of an Exchange Note Servicer Event of Default, all authority and power obligations of the Servicer under this 2021-A Servicing Supplementto become due before its (or their) stated maturity or before its (or their) regularly scheduled dates of payment so long as such failure, whether with respect to the Notes, the Certificates, the Trust Estate event or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed pursuant to the terms of the Basic Servicing Agreement. If the Indenture Trustee shall become Successor Servicer pursuant to this Section, the Indenture Trustee condition shall be continuing and shall not have been waived by the Person or Persons entitled to appoint as sub-Servicer performance;
(viii) a final judgment or judgments (or decrees or orders) for the payment of money aggregating in excess of $5,000,000 and any one of its Affiliates such judgments (or agents; provided that decrees or orders) has remained unsatisfied and in effect for any period of 60 consecutive days without a stay of execution;
(ix) so long as IOS Capital is the Indenture Trustee in its capacity as Servicer Servicer, a downgrading of the long-term debt rating assigned by Xxxxx'x or S&P to IOS Capital to Ba2 or below or BB or below, respectively;
(x) for any three consecutive Due Periods, the average of the Annualized Default Rates for such Due Periods shall be fully liable greater than 8.00%; or
(xi) for the actions or omissions of such Affiliate or agent in such capacity as sub-Servicer. The outgoing Servicer shall cooperate with the Indenture Trusteeany three consecutive Due Periods, the Owner Trustee and such Successor Servicer in effecting the termination average of the responsibilities and rights of the outgoing Servicer under this 2021-A Servicing Supplement, including the transfer to the Indenture Trustee or Delinquency Rates for such Successor Servicer for administration by it of all cash amounts that shall at the time be held by the outgoing Servicer for deposit, or have been deposited by the outgoing Servicer, in the 2021-A Bank Accounts or thereafter received with respect to the 2021-A Leases and 2021-A Vehicles and all information or documents that the Indenture Trustee or such Successor Servicer may require, and the Successor Servicer shall not be liable if it cannot perform due to the failure of the predecessor Servicer to so deliver. In addition, the Servicer shall transfer its electronic records relating to the 2021-A Leases and 2021-A Vehicles to the Successor Servicer in such electronic form as the Successor Servicer may reasonably request. All Transition Costs Due Periods shall be paid by the outgoing Servicer (or by the initial Servicer if the outgoing Servicer is the Indenture Trustee acting on an interim basis) upon presentation of reasonable documentation of such costs and expensesgreater than 10.00%.
Appears in 1 contract
Samples: Assignment and Servicing Agreement (Ikon Receivables LLC)