Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 64 contracts

Samples: Pooling and Servicing Agreement (RALI Series 2006-Qa4 Trust), Pooling and Servicing Agreement (RALI Series 2007-Qh5 Trust), Series Supplement Amendment (RALI Series 2006-Qh1 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, ~~monitor or verify the payment of Reimbursement Amounts to the related Advancing~~ Person or Advance Facility Trustee; provided, however, the Trustee shall maintain records with respect to the payment of such Reimbursement Amounts as it does with respect to other distributions made pursuant to this Agreement. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents~~ acknowledgments reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 33 contracts

Samples: Pooling and Servicing Agreement (RALI Series 2005-Qa4 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2004-Qs15 Trust), Pooling and Servicing Agreement (RALI Series 2004-Qs12 Trust)

Advance Facility. (a) ~~The Master~~ Each Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) ~~the Master~~ each such Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) ~~the Master~~ such Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by ~~the Master~~ such Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before ~~the Master~~ such Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before such Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on ~~the Master~~ a Servicer's ’s behalf, ~~the Master~~ each such Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If ~~the Master~~ each such Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then such Servicer shall identify amounts collected that would otherwise be retained by such Servicer to reimburse it for previously unreimbursed Advances ("“Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)) as such amounts are received, ~~as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent~~ consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Each Servicer making an election to remit Reimbursement Amounts to the Trustee shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If ~~the Master~~ a Servicer enters into an Advance Facility and makes the election ~~set forth~~ to remit Reimbursement Amounts to the Trustee as described in Section 3.22(a), ~~the Master~~ such Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ related Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.22 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ related Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii~~Sections 3.07(d)(ii) and 3.09(a)(ii), (iii) and (~~vii~~iv) hereof, assuming ~~the Master~~ such Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Reimbursement Amounts to the ~~related Advancing Person or~~ Trustee, shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on such Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from such Servicer to the Trustee pursuant to Section 3.09(a)(viii) or (ix). ~~The Master~~ Such Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to the qualifications set forth below: (i) Any successor Master~~ . Each Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has entering into an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed~~ remitted to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person~~ Distribution Date or ~~Advance Facility Trustee~~otherwise, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . Each Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master~~ such Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Each Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and ~~the Master~~ such Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 22 contracts

Samples: Pooling and Servicing Agreement (Home Equity Asset Trust 2005-2), Pooling and Servicing Agreement (Home Equity Asset Trust 2007-1), Pooling and Servicing Agreement (Home Equity Asset Trust 2005-4)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 16 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2005-Sa2 Trust), Pooling and Servicing Agreement (RFMSI Series 2005-Sa5 Trust), Pooling and Servicing Agreement (RFMSI Series 2005-S9 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Securities Administrator, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Securities Administrator shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Securities Administrator and the Trustee not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Securities Administrator made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Securities Administrator and the Trustee the portions of the Advance Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the Trustee~~ Securities Administrator a written notice and payment instruction (an "“Advance Facility Notice"”), providing the ~~Trustee~~ Securities Administrator with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility ~~Trustee~~Securities Administrator)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the Trustee~~ The Securities Administrator shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount,~~ Amount and shall be entitled to rely without independent investigation on the Advance Facility Notice and on the Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Securities Administrator pursuant to Section 3.11(a)(i). Neither the Securities Administrator nor ~~shall the Company or~~ the Trustee shall have any additional responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Advance Reimbursement Amounts to the ~~related Advancing Person or Advance Facility Trustee~~Servicer’s Assignee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ electing Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Securities Administrator to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Securities Administrator, the Trust and any successor servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person relating to the Advance Facility. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Securities Administrator, ~~Company~~ the Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. . All reasonable costs and expenses (hincluding attorneys’ fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the ~~Trust Fund,~~ Servicer. The parties hereto hereby acknowledge and agree that: (a) the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances ~~(as the case may be) and the Advancing~~ financed by and/or pledged to an Advance Financing Person ~~or related~~ under any Advance Facility ~~Trustee shall have~~ are obligations owed to the Servicer payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon the delivery of a written notice signed by the Advancing Person~~ and the ~~Master Servicer or its successor or assign) to~~ Securities Administrator and the ~~Trustee terminating~~ Trust are not, as a result of the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, obligated or liable to repay any Advances and/or Servicing Advances financed by the Advance Financing Person; (b) the Servicer will be responsible for remitting to the Advance Financing Person the applicable amounts colleted by it as reimbursement for Advances and/or Servicing Advances funded by the Advance Financing Person, subject to the provisions of this Agreement; and ~~until~~ (c) the Securities Administrator shall not have any ~~such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing~~ financing arrangement between the Servicer and any Advance Financing Person.

Appears in 15 contracts

Samples: Pooling and Servicing Agreement (Jpmac 2006-Wmc4), Pooling and Servicing Agreement (Jpmac 2006-He2), Pooling and Servicing Agreement (Jpmac 2006-Ch2)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x Investors’ Service Inc. that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (ed) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 14 contracts

Samples: Securitization Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Certs Ser 2003 Bc8), Securitization Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2003-Bc3), Securitization Servicing Agreement (Encore Credit Corp Mortgage Pass Through Certs Ser 2003-1)

Advance Facility. ~~(a)~~ The ~~Master Servicer~~ Servicer, with the consent of the NIMS Insurer, is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party (other than the NIMS Insurer consent) shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify the NIMS Insurer and each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master Servicer enters~~ terms of a facility proposed to be entered into with an ~~Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related~~ Advancing Person by the Trust Fund would not materially and adversely affect the interests of any Certificateholder, then the NIMS Insurer shall ~~deliver~~ not withhold its consent to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent Trust Fund’s entering such ~~type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates~~facility. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, the NIMS Insurer, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee, the NIMS Insurer or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any ~~Certificateholder,~~ Certificateholder but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on~~ NIMS Insurer, provided such ~~Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in~~ amendment complies with Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 13 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt1), Pooling and Servicing Agreement (Greenpoint Mortgage Funding Trust 2005-Hy1), Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Opt2)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Trustee not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Trustee the portions of the Advance Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full as evidenced by a certification signed by the Servicer and Advancing Person and delivered to the Trustee. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount, nor~~ Amount and shall be entitled to rely without independent investigation on the ~~Company or~~ Advance Facility Notice and on the Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Trustee pursuant to Section 3.11(a)(i). The Trustee shall not have any additional responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Advance Reimbursement Amounts to the ~~related Advancing Person or Advance Facility Trustee~~Servicer’s Assignee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ electing Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person relating to the Advance Facility. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. . All reasonable costs and expenses (hincluding attorneys’ fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the ~~Trust Fund,~~ Servicer. The parties hereto hereby acknowledge and agree that: (a) the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances ~~(as the case may be) and the Advancing~~ financed by and/or pledged to an Advance Financing Person ~~or related~~ under any Advance Facility ~~Trustee shall have~~ are obligations owed to the Servicer payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon the delivery of a written notice signed by the Advancing Person~~ and the ~~Master Servicer or its successor or assign) to~~ Trustee and the ~~Trustee terminating~~ Trust are not, as a result of the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, obligated or liable to repay any Advances and/or Servicing Advances financed by the Advance Financing Person; (b) the Servicer will be responsible for remitting to the Advance Financing Person the applicable amounts colleted by it as reimbursement for Advances and/or Servicing Advances funded by the Advance Financing Person, subject to the provisions of this Agreement; and ~~until~~ (c) the Trustee shall not have any ~~such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing~~ financing arrangement between the Servicer and any Advance Financing Person.

Appears in 11 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Trust 2007-Ch4), Pooling and Servicing Agreement (Jpmac 2007-Ch1), Pooling and Servicing Agreement (Jpmac 2007-Ch1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 10 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2005-Ks7 Trust), Pooling and Servicing Agreement (RASC Series 2005-Ahl2 Trust), Pooling and Servicing Agreement (Residential Asset Securities Corp)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility with any Person (any such ~~arrangement~~Person, an "“Advance ~~Facility"~~Facility Counterparty”) ~~under~~ which ~~(1)~~ provides that the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may ~~enter into an Advance Facility. Notwithstanding the existence~~ pledge or sell its rights to receive reimbursement of ~~any Advance Facility under which an Advancing Person agrees to fund~~ Advances ~~and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated~~ pursuant to this Agreement ~~to make Advances and Servicing Advances~~ (“Advance Reimbursement Rights”) pursuant to ~~and as required by this Agreement~~credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the Advances (any such facility, an “Advance Facility”), although no Advance Facility shall reduce or otherwise affect the Servicer’s obligations to fund such Advances. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of an Advance Facility, to the extent that an Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Counterparty and the Servicer provide the Indenture Trustee with notice acknowledged by the Servicer that such Advance Facility Counterparty is entitled to reimbursement, such Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided. Such notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement and must specify which Section of this Agreement permits the Advance to be reimbursed. The Indenture Trustee shall be entitled to conclusively rely without independent investigation on the Advance Facility Counterparty’s statement with respect to the amount of any reimbursement pursuant to this Section 3.20 and with respect to the Advance Facility Counterparty’s statement with respect to the Section of this Agreement permits the Advance to be reimbursed. An Advance Facility Counterparty whose obligations are limited to the making of Advances will not be deemed to be a Subservicer under this Agreement. (b) If so required pursuant to the terms of an Advance Facility, the ~~Master~~ Servicer may direct, and if so directed in writing the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility ~~Trustee~~ Counterparty (i) reimbursements for Advances; and (ii) all or such portion of the ~~Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or~~ Servicing ~~Advances shall not~~ Fee as may be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, so specified in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility~~) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to~~ , that would otherwise be ~~distributed~~ payable to the ~~Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master~~ Servicer ~~and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility~~ pursuant to this ~~Section 3.22(b)~~Agreement or the Servicing Agreement. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration Upon request of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Indenture Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer~~ acknowledgments recognizing the interests of any ~~Advancing Person or~~ Advance Facility ~~Trustee~~ Counterparty in such Advance Reimbursement ~~Amounts~~ Rights and Servicing Fees as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor3.20, and ~~Liquidation Proceeds or Insurance Proceeds, if any,~~ such other documents in connection with ~~respect~~ such Advance Facilities as may be reasonably requested from time to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made time by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality Counterparty. The implementation of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as arrangement described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without~~ shall not require the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust FundSecurityholders, the Issuer or the Indenture Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 8 contracts

Samples: Sale and Servicing Agreement (Saxon Asset Securities Trust 2005-1), Sale and Servicing Agreement (Saxon Asset Securities Trust 2004-3), Sale and Servicing Agreement (Sast 2006-3)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x Investors’ Service Inc. that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or distributed to Certificateholders~~. (b)~~ . If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice ~~and payment instruction~~ of the existence of such Advance Facility (an "“Advance Facility Notice"”), ~~providing~~ stating the ~~Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type~~ identity of ~~Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to~~ the Advancing Person ~~or to an~~ and any related Advance Facility ~~Trustee designated in the Advance Facility Notice~~Trustee. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person ~~(and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this~~ as described in Section ~~3.22(b)~~3.21(h) below. (cb) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (ed) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (hg) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any ~~Successor Master~~ successor Servicer or any other Person might otherwise have against ~~the Master~~ any Servicer under this Agreement shall not attach to any rights to be reimbursed for Monthly Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (ih) At any time when an Advancing Person shall have ceased funding Monthly Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Monthly Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the ~~Master~~ related Servicer ~~or its successor or assign)~~ to the Trustee terminating the Advance Facility Notice (the "“Notice of Facility Termination"”), the ~~Master Servicer or its Successor Master~~ Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to ~~Section 3.10~~the applicable Sections of this Agreement. (ji) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 8 contracts

Samples: Securitization Servicing Agreement (Structured Asset Investment Loan Trust Series 2004-11), Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2004-8), Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2005-3)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Trustee not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Trustee the portions of the Advance Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.11(a)(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ electing Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person relating to the Advance Facility, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) ~~Any rights~~ Upon the direction of ~~set-off that~~ and at the ~~Trust Fund~~expense of the Servicer, the ~~Trustee~~Trustee agrees to execute such acknowledgments, ~~the Company~~certificates, ~~any Successor Master Servicer or any~~ and other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed documents provided by the ~~Advancing Person and~~ Servicer recognizing the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery interests of any Advance Facility ~~Notice~~Trustee in such Advance Reimbursement Amounts as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.28, and ~~until any~~ such other documents in connection with such Advance Facilities as may be reasonably requested from time to time by any Advance Facility ~~Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person~~Trustee.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He5), Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2005-He2), Pooling and Servicing Agreement (Asset Backed Securities Corp)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Certificate Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2006-Ks5 Trust), Pooling and Servicing Agreement (RASC Series 2006-Ks8 Trust), Pooling and Servicing Agreement (RASC Series 2006-Ks6 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement, which provides that the Servicer may pledge or sell its rights to receive reimbursement of Advances, advances of taxes pursuant to Section 3.01(b) and advances of insurance pursuant to Section 3.12 (collectively, "Facility Advances") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of ~~the Depositor~~Facility Advances, ~~the Trustee, the Certificateholders~~ including facilities providing that such Advance Facility Counterparty may make all or ~~any other party shall be required before the Master Servicer may enter into an Advance Facility~~a portion of Facility Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Facility Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Facility Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Facility Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.10 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated in writing to the Trustee by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account, and ~~if so directed in writing~~ the ~~Trustee is hereby authorized to and~~ Servicer shall pay to the Advance Facility ~~Trustee~~ Counterparty or the Advance Facility Trustee, the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. ~~An Advancing Person whose obligations hereunder are limited~~ The Trustee shall have no obligation with respect to the ~~funding~~ calculation or payment of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any Advance Reimbursement ~~Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution~~ Amount ~~or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a)~~nor, ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee~~ as a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction result of the ~~Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination~~ existence of any Advance Facility ~~pursuant~~ shall the Trustee have any obligation to ~~this Section 3.22(b)~~track, monitor or administer such Advance Facility. (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Facility Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Facility Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable for any errors~~ included in ~~such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ distributions to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory~~ Certificateholders. An Advance Facility Counterparty whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making of ~~any Advancing Person or Advance~~ Facility ~~Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject to Advance Facilities pursuant to~~ a Subservicer under this ~~Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances~~ Agreement or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ meet the ~~reimbursement of Advances and Servicing Advances in the manner provided~~ criteria for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, qualification as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in Subservicer under this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (GMACM Mortgage Loan Trust 2006-Ar2), Pooling and Servicing Agreement (GMACM Mortgage Loan Trust 2005-Aa1), Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar5)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonably satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2006-Emx6 Trust), Pooling and Servicing Agreement (RASC Series 2006-Emx8 Trust), Pooling and Servicing Agreement (RASC Series 2006-Emx4 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this ~~Agreement~~Agreement and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Trustee not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Trustee the portions of the Advance Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.11(a)(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances, shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ electing Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person relating to the Advance Facility, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer, as applicable. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) ~~Any rights~~ Upon the direction of ~~set-off that~~ and at the ~~Trust Fund~~expense of the Servicer, the ~~Trustee~~Trustee agrees to execute such acknowledgments, ~~the Company~~certificates, ~~any Successor Master Servicer or any~~ and other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed documents provided by the ~~Advancing Person and~~ Servicer recognizing the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery interests of any Advance Facility ~~Notice~~Trustee in such Advance Reimbursement Amounts as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.28, and ~~until any~~ such other documents in connection with such Advance Facilities as may be reasonably requested from time to time by any Advance Facility ~~Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person~~Trustee.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series 2006-He7), Pooling and Servicing Agreement (Asset Backed Securities CORP Home Equity Loan Trust, Series OOMC 2006-He3), Pooling and Servicing Agreement (Asset Backed Securities Corp Home Equity Loan Trust, Series RFC 2007-He1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required ~~by Section~~ in 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (RAMP Series 2005-Rs6 Trust), Pooling and Servicing Agreement (RAMP Series 2005-Rs4 Trust), Pooling and Servicing Agreement (RAAC Series 2004-Sp3)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Indenture Trustee, the ~~Certificateholders~~ Master Servicer, the Securities Administrator, Noteholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Indenture Trustee, the Master Servicer and the Securities Administrator shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances including Nonrecoverable Advances related thereto ("“Monthly Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances related thereto ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent that such type of Servicer Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Servicer Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Servicer Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (each, an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Securities Administrator to, and if so directed ~~in writing~~ the ~~Trustee~~ Securities Administrator is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in “Available Funds” or paid to Noteholders. If the Servicer makes a remittance to the Securities Administrator of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Master Servicer and the Securities Administrator the portions of such remittance that consist of Available ~~Distribution Amount or distributed to Certificateholders~~Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and ~~makes~~ elects to remit Servicer Reimbursement Amounts to the ~~election set forth in Section 3.22(a)~~Securities Administrator, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the Trustee~~ Securities Administrator a written notice and payment instruction (an "“Advance Facility Notice"”), providing the ~~Trustee~~ Securities Administrator with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent ~~Distribution~~ Payment Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to ~~Certificateholders~~ Noteholders pursuant to ~~this Agreement~~the provisions of Section 3.15. ~~Neither~~ None of the ~~Company nor~~ Securities Administrator, the Master Servicer or the Indenture Trustee shall have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Servicer Reimbursement Amounts to the ~~related Advancing Person or~~ Securities Administrator, each of the Securities Administrator, the Master Servicer and the Indenture Trustee shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on the Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Securities Administrator pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any Successor Servicer and (upon request) the Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The Successor ~~Master~~ Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the Successor ~~Master~~ Servicer shall not be liable for any errors in such information. None of the Depositor, the Indenture Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect to the calculation or payment of any Servicer Reimbursement Amount, and none of the Depositor, the Indenture Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional responsibility to track or monitor the administration of such Advance Facility or the payment of Servicer Reimbursement Amounts to an Advancing Person. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-in, first out" ("FIFO")~~ FIFO basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Securities Administrator to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Payment Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, none of the Master Servicer, the Securities Administrator or the Indenture Trustee shall be responsible for tracking or monitoring Servicer Reimbursement Amounts or any Advance Facility, and none of such parties shall be obligated to make any payment with respect to any Servicer Reimbursement Amount. The Servicer who enters into an Advance Facility shall indemnify the Indenture Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer for any loss, liability or damage resulting from any claim by the related Advancing Person, except (i) in the case of the Indenture Trustee, the Securities Administrator, the Master Servicer or the Trust, (A) resulting from any such claim which arises by reason of such party’s, as applicable, willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of the such party’s reckless disregard of its obligations and duties hereunder or (B) any such claim for which such party receives indemnification from the Servicer or a Successor Servicer pursuant to Section 5.06(a), or (ii) in the case of a Successor Servicer, which claim arises by reason of such Successor Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder. Notwithstanding the foregoing, the exclusions set forth in clauses (i) and (ii) above from the Servicer’s obligation to indemnify the Indenture Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer shall not be applicable, in any case, to the extent the applicable claim, loss, liability or damage was incurred by reason of the Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder, or by reason of a breach of the Servicer’s obligations and duties under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.20, the Servicer shall consult with the Master Servicer in determining the manner in which any Advance Facility shall affect a Successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a ~~successor Master~~ Successor Servicer, may be entered into by the ~~Trustee, the Certificate Insurer, Company and the Master Servicer~~ parties hereto without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)Noteholder, notwithstanding anything to the contrary in ~~Section 11.01 of or elsewhere in~~ this Agreement. , and provided that such Amendment otherwise complies with the terms hereof. All reasonable costs and expenses (hincluding attorneys’ fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed to the Servicer payable only from the cash flows and proceeds received under this Agreement for reimbursement of Monthly Advances and/or Servicing Advances only to the extent provided herein, and the Indenture Trustee and the Trust ~~Fund~~are not, as a result of the existence of any Advance Facility, obligated or liable to repay any Monthly Advances and/or Servicing Advances financed by the Advancing Person; (ii) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Monthly Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and (iii) the Indenture Trustee, the ~~Company, any Successor~~ Master Servicer ~~or any other Person might otherwise have against~~ and the ~~Master Servicer under this Agreement~~ Securities Administrator shall not ~~attach~~ have any responsibility to ~~any rights to be reimbursed for Advances~~ track or ~~Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to~~ monitor the administration of the financing arrangement between the Servicer and any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 6 contracts

Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2006-2), Servicing Agreement (Renaissance Home Equity Loan Trust 2006-3), Servicing Agreement (Renaissance Home Equity Loan Trust 2007-1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer (a "Successor Master Servicer") a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any ~~successor~~ Successor Master Servicer to Residential Funding ~~(a "Successor Master Servicer")~~ and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the ~~lesser of the~~ then current ~~or original~~ ratings on such Certificates, and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (RAMP Series 2006-Efc2 Trust), Pooling and Servicing Agreement (RAMP Series 2006-Nc3 Trust), Pooling and Servicing Agreement (RAMP Series 2006-Nc2 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty") ), without the ~~Master Servicer's rights under~~ consent of any party to this Agreement or the Enhancer, which provides that the Servicer may pledge or sell its rights to ~~be reimbursed for any~~ receive reimbursement of Servicer Advances ~~or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer~~ pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor~~Servicer Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the ~~Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer ~~may enter into an Advance Facility~~Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Servicer Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Servicer Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Indenture Trustee to withdraw, as applicable, and the Servicer shall, or if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan. (iie) ~~By way~~ Upon request of ~~illustration~~the Servicer, the Indenture Trustee agrees to execute such acknowledgments, certificates, and ~~not by way~~ other documents recognizing the interests of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or any Advance Facility ~~Trustee, then all payments and recoveries received from~~ Counterparty in such Advance Reimbursement Rights as the ~~related Mortgagor or received in the form of Liquidation Proceeds with respect~~ Servicer may cause to ~~such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will~~ be ~~allocated first~~ made subject to ~~the Advancing Person or~~ Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan Facilities pursuant to this Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above3.21. (f) The ~~Master Servicer~~ Indenture Trustee shall ~~remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold~~not, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as ~~described generally in this Section 3.22, including amendments to add provisions relating to~~ a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result ~~in the reduction~~ of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, ~~and until~~ have any ~~such~~ duty or liability with respect to the calculation of any Advance ~~Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ Reimbursement Amount nor have any responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing Person~~Advance Facility.

Appears in 5 contracts

Samples: Servicing Agreement (GMACM Home Equity Loan Trust 2007-He2), Servicing Agreement (GMACM Home Equity Loan Trust 2006-He5), Servicing Agreement (GMACM Home Equity Loan Trust 2006-He2)

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc), Pooling and Servicing Agreement (RFMSI Series 2004-S7 Trust), Pooling and Servicing Agreement (RFMSI Series 2004-Sa1 Trust)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d"FIFO") basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt1), Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2005-2), Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2005-1 Asset-Backed Certificates, Series 2005-1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2007-Sa1 Trust), Pooling and Servicing Agreement (RFMSI Series 2007-Sa2 Trust), Pooling and Servicing Agreement (RFMSI Series 2007-Sa4 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer (a "Successor Master Servicer") a detailed accounting on a ~~loan-~~loan by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any ~~successor~~ Successor Master Servicer to Residential Funding ~~(a "Successor Master Servicer")~~ and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the ~~lesser of the~~ then current ~~or original~~ ratings on such Certificates, and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (RAMP Series 2006-Rs6 Trust), Pooling and Servicing Agreement (RAMP Series 2007-Rs2 Trust), Pooling and Servicing Agreement (RAMP Series 2006-Rz3 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master Servicer and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, ~~the Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, ~~and an opinion of counsel as required by Section 11.01(c),~~ notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 5 contracts

Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc), Pooling and Servicing Agreement (RAMP Series 2005-Rz4 Trust), Pooling and Servicing Agreement (RAMP Series 2005-Rz1 Trust)

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (RALI Series 2006-Qs12 Trust), Pooling and Servicing Agreement (RALI Series 2006-Qa8 Trust), Pooling and Servicing Agreement (Residential Accredit Loans Inc)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Residential Funding Mortgage Securities I Inc), Pooling and Servicing Agreement (RFMSI Series 2006-S8 Trust), Pooling and Servicing Agreement (RFMSI Series 2007-S8 Trust)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the Certificate Insurer, the Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement~~. If the Master~~ , and if Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to Section 3.02(b), Section 3.03(ii) or Section 3.03(vi) of this Agreement, but instead the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("Monthly Advance Reimbursement Amounts") and/or previously unreimbursed Servicing ~~Advances including Nonrecoverable~~ Advances ("Servicing Advance Reimbursement Amounts" and together with Monthly Advance Reimbursement Amounts, "Reimbursement ~~Amounts") (in~~ Amounts")(in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), ~~as applicable,~~ in the remittance to the Trustee made pursuant to Section 3.03(i) of this Agreement, ~~then~~ to the extent of amounts on deposit in the Collection Account on the related Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ "Available ~~Distribution Amount~~ Funds" or distributed to Certificateholders. If the Servicer makes a remittance to the Trustee of Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Trustee the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an "Advance Facility ~~Trustee~~ Trustee") designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 3.15. Neither the ~~Company~~ Trustee nor the ~~Trustee~~ Certificate Insurer shall have any duty or liability with respect to the calculation of any Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer's report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer and (upon request) the Certificate Insurer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, ~~first~~ first-out" ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, the Certificate Insurer is not and shall not be responsible to track or monitor Reimbursement Amounts or any Advance Facility, and is not and shall not be obligated to make any payment with respect to any Reimbursement Amount. The Servicer who enters into an Advance Facility shall indemnify the Certificate Insurer, the Trustee, the Trust and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Certificate Insurer, the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.20, the Servicer shall consult with the Certificate Insurer in determining the manner in which any Advance Facility shall affect a successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~Certificate Insurer, notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/), Pooling and Servicing Agreement (Delta Funding Corp /De/), Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Indenture Trustee, the ~~Certificateholders~~ Noteholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement in writing prior to or promptly after entering into or terminating any Advance Facility stating the identity of the Advancing Person. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall ~~identify~~ identify, in the Officer’s Certificate described in the next two sentences, such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An To the extent that an Advancing Person ~~whose obligations hereunder are limited~~ funds any Advance and the Servicer provides the Indenture Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursement, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the ~~funding~~ extent provided in this section. Such Officer’s Certificate must specify the amount of ~~Advances and/or Servicing Advances shall not be required to meet~~ the ~~qualifications~~ reimbursement, the remittance date, the Section of ~~a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed~~ this Agreement that permits the applicable Advance to be ~~a Subservicer~~ reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to request reimbursement from the Indenture Trustee, rather than the Servicer, or proof of an event of default by the Servicer under ~~this Agreement~~the Advance Facility entitling the Advancing Person to reimbursement from the Indenture Trustee. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or ~~distributed~~ paid to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution DatesNoteholders. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future ~~distribution~~ payment to ~~Certificateholders~~ Noteholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Indenture Trustee shall have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and shall be entitled to rely, without independent investigation, on the Officer’s Certificate provided pursuant to this Section 3.29, nor shall the ~~Company~~ Depositor or the Indenture Trustee have any responsibility to track or monitor the administration of ~~the~~ any Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Indenture Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Indenture Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Indenture Trustee, any successor servicer and the Trust for any loss, liability or damage resulting from any Advance Facility, including, without limitation, any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Indenture Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Indenture Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Noteholder but with the consent of the Majority Certificateholder, provided such amendment complies with ~~written confirmation from~~ Section 7.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of each ~~Rating Agency that~~ party hereto of any such amendment shall be borne solely by the ~~amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and~~ Servicer. Prior to entering into an ~~opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund~~Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Indenture Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and (b) the ~~Master Servicer~~ Indenture Trustee shall not have any responsibility to calculate any Reimbursement Amounts or ~~its successor~~ to track or ~~assign) to~~ monitor the ~~Trustee terminating~~ administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Securities Administrator, ~~the Trustee, the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Securities Administrator shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Securities Administrator not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Securities Administrator made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Securities Administrator the portions of the Advance Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the Trustee~~ Securities Administrator a written notice and payment instruction (an "“Advance Facility Notice"”), providing the ~~Trustee~~ Securities Administrator with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility ~~Trustee~~Securities Administrator)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the Trustee~~ The Securities Administrator shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount,~~ Amount and shall be entitled to rely without independent investigation on the Advance Facility Notice and on the Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Securities Administrator pursuant to Section 3.11(a)(i). Neither the Securities Administrator nor ~~shall the Company or~~ the Trustee shall have any additional responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Advance Reimbursement Amounts to the ~~related Advancing Person or Advance Facility Trustee~~Servicer’s Assignee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Securities Administrator to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Securities Administrator, the Trust and any successor servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person relating to the Advance Facility. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Securities Administrator, ~~Company~~ the Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. . All reasonable costs and expenses (hincluding attorney’s fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the ~~Trust Fund,~~ Servicer. The parties hereto hereby acknowledge and agree that: (a) the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances ~~(as the case may be) and the Advancing~~ financed by and/or pledged to an Advance Financing Person ~~or related~~ under any Advance Facility ~~Trustee shall have~~ are obligations owed to the Servicer payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon the delivery of a written notice signed by the Advancing Person~~ and the ~~Master Servicer or its successor or assign) to~~ Securities Administrator and the ~~Trustee terminating~~ Trust are not, as a result of the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, obligated or liable to repay any Advances and/or Servicing Advances financed by the Advance Financing Person; (b) the Servicer will be responsible for remitting to the Advance Financing Person the applicable amounts colleted by it as reimbursement for Advances and/or Servicing Advances funded by the Advance Financing Person, subject to the provisions of this Agreement; and ~~until~~ (c) the Securities Administrator shall not have any ~~such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing~~ financing arrangement between the Servicer and any Advance Financing Person.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp 2005-Opt2), Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp 2005-Opt2), Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-Opt1)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty") ), without the ~~Master Servicer's rights under~~ consent of any party to this Agreement or the Enhancer, which provides that the Servicer may pledge or sell its rights to ~~be reimbursed for~~ receive reimbursement of any ~~Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be~~ advances made by the ~~Master~~ Servicer in respect of draws for HELOCs ("HELOC Advances") and any Servicer Advances pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor,~~ HELOC Advances and the ~~Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer ~~may enter into an Advance Facility~~Advances. Notwithstanding the existence of any Advance ~~Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf~~Facility, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any HELOC Advance or Servicer Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Indenture Trustee to withdraw, as applicable, and the Servicer shall, or if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration,~~ . HELOC Advances shall be reimbursed as funds are received and ~~not by way of limiting~~ available to be disbursed in reimbursement for any HELOC Advance pursuant to the ~~generality of~~ Basic Documents. The Servicer shall provide to the ~~foregoing, if the Master Servicer resigns~~ related Advance Facility Counterparty or ~~is terminated at a time when the Master Servicer is a party to an~~ Advance ~~Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances~~ Facility Trustee loan-by-loan information with respect to ~~a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts~~ each HELOC Advance remitted to ~~the related Advancing Person~~ such Advance Facility Counterparty or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (fe) ~~The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by~~ Upon request of the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, ~~may be entered into by~~ the ~~Trustee~~Indenture Trustee agrees to execute such acknowledgments, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificatescertificates, and ~~an opinion of counsel as required by Section 11.01(c), notwithstanding anything to~~ other documents recognizing the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery interests of any Advance Facility ~~Notice, and until any~~ Counterparty in such Advance ~~Facility Notice has been terminated by a Notice of Facility Termination,~~ Reimbursement Rights as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person~~3.21.

Appears in 4 contracts

Samples: Servicing Agreement (Gmacm Home Equity Loan Trust 2004-He3), Servicing Agreement (GMACM Home Equity Loan Trust 2004-He4), Servicing Agreement (Gmacm Home Equity Loan Trust 2005-He3)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, ~~monitor or verify the payment of Reimbursement Amounts to the related Advancing~~ Person or Advance Facility Trustee; provided, however, the Trustee shall maintain records with respect to the payment of such Reimbursement Amounts as it does with respect to other distributions made pursuant to this Agreement. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents~~ acknowledgments reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (RALI Series 2005-Qa11 Trust), Pooling and Servicing Agreement (RALI Series 2005-Qa12 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2005-Qa9 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary contained herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or be distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s)~~. Notwithstanding~~ . (c) None of the ~~foregoing~~Master Servicer, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (e) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Seller, the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Seller, the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (g) Any amendment to this Section ~~3.22~~ 3.25 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.25, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Securitization Servicing Agreement (Structured Asset Securities CORP Mortgage Loan Trust 2007-Bc2), Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2005-7), Securitization Servicing Agreement (Structured Asset Securities Corp 2005-Ar1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Certificate Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonably satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2007-Ks1 Trust), Pooling and Servicing Agreement (RAMP Series 2006-Rz5 Trust), Pooling and Servicing Agreement (RASC Series 2007-Ks1 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement~~. If~~ , and if the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to Section 3.02(b), Section 3.03(ii) or Section 3.03(vi) of this Agreement, but instead the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent such type of Servicer Reimbursement Amount is included in the Advance Facility), ~~as applicable,~~ in the remittance to the Trustee made pursuant to Section 3.03(i) of this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreementrelated Deposit Date. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ “Available ~~Distribution Amount~~ Funds” or distributed to Certificateholders. If the Servicer makes a remittance to the Trustee of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Trustee the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 3.15. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any Successor ~~Master~~ Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The Successor ~~Master~~ Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the Successor ~~Master~~ Servicer shall not be liable for any errors in such information. Neither the Depositor nor the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect to the calculation or payment of any Servicer Reimbursement Amount, and neither the Depositor nor the Trustee shall, as a result of the existence of any Advance Facility, have any additional responsibility to track or monitor the administration of such Advance Facility or the payment of Servicer Reimbursement Amounts to an Advancing Person. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) The documentation establishing any Advance Facility shall require that Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the Successor Servicer, or failure by the Successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the Successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a ~~successor Master~~ Successor Servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Seller, ~~Company~~ the Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided that such Amendment complies with ~~written confirmation from~~ Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of each ~~Rating Agency that~~ party hereto of any such amendment shall be borne solely by the ~~amendment will not result in~~ Servicer. The parties hereto hereby acknowledge and agree that: (i) the ~~reduction of the ratings on~~ Monthly Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any ~~class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything~~ Advance Facility are obligations owed to the ~~contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that~~ Servicer payable only from the ~~Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer~~ cash flows and proceeds received under this Agreement for reimbursement of Monthly Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust are not, as a result of the existence of any Advance Facility, obligated or liable to repay any Monthly Advances and/or Servicing Advances financed by the Advancing Person; (ii) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Monthly Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and (iii) the Trustee shall not ~~attach~~ have any responsibility to ~~any rights to be reimbursed for Advances~~ track or ~~Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to~~ monitor the administration of the financing arrangement between the Servicer and any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3), Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2003-4), Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22~~. (e) Reimbursement Amounts collected~~ , and such other documents in connection with ~~respect~~ such Advance Facility as may be reasonably requested from time to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the time by any Advancing Person or Advance Facility Trustee ~~shall be required to apply all amounts available in accordance with this Section 3.22(e)~~ and reasonably satisfactory to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2005-Ks8 Trust), Pooling and Servicing Agreement (RASC Series 2005 EMX4 Trust), Pooling and Servicing Agreement (RASC Series 2005-Ahl3 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any P&I Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all P&I Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to P&I Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund P&I Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make P&I Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any P&I Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Trustee not to be permitted to reimburse itself for P&I Advances and/or Servicing Advances, as applicable, pursuant to Section 3.11(a) of this Agreement, but following any such election, the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously xxxxxxxxxxxx X&X Advances ("“P&I Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with P&I Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent such type of Advance Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall P&I Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Trustee the portions of the Reimbursement Amounts that consist of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.28(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit P&I Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Advance Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Advance Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.28 shall cease to be applicable when all P&I Advances and Servicing Advances funded by an Advancing Person, and when all P&I Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. Under no circumstances shall the Advancing Person have the right to withdraw funds directly from the Collection Account. (c) Advance Reimbursement Amounts shall consist solely of amounts in respect of P&I Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (~~vii~~ix) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related P&I Advance(s) and/or Servicing Advance(s). Notwithstanding the ~~foregoing, except with respect~~ foregoing (subject to ~~reimbursement of Nonrecoverable Advances as set forth in~~ Section ~~3.10(c~~3.28(a) ~~of this Agreement~~above), no Advancing Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.03. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Advance Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of P&I Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.11(a)(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for P&I Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of P&I Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.28(a), the documentation establishing any Advance Facility shall require that Advance Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding ~~unreimbursed~~ xxxxxxxxxxxx X&X Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ electing Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Advance Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all P&I Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer. (g) Any amendment to this Section ~~3.22~~ 3.28 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.28, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Trust Series 2003 He7), Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Trust Series 2003 He7), Pooling and Servicing Agreement (Asset Backed Securities Corp)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement, which provides that the Servicer may pledge or sell its rights to receive reimbursement of Advances, advances of taxes pursuant to Section 3.01(b) and advances of insurance pursuant to Section 3.12 (collectively, "Facility Advances") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of ~~the Depositor~~Facility Advances, ~~the Trustee, the Certificateholders~~ including facilities providing that such Advance Facility Counterparty may make all or ~~any other party shall be required before the Master Servicer may enter into an Advance Facility~~a portion of Facility Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Facility Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Facility Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Facility Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in Section ~~3.10(a)(ii)~~ 3.10 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated in writing to the Trustee by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account, and ~~if so directed in writing~~ the ~~Trustee is hereby authorized to and~~ Servicer shall pay to the Advance Facility ~~Trustee~~ Counterparty or the Advance Facility Trustee, the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. ~~An Advancing Person whose obligations hereunder are limited~~ The Trustee shall have no obligation with respect to the ~~funding~~ calculation or payment of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any Advance Reimbursement ~~Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution~~ Amount ~~or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a)~~nor, ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee~~ as a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction result of the ~~Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination~~ existence of any Advance Facility ~~pursuant~~ shall the Trustee have any obligation to ~~this Section 3.22(b)~~track, monitor or administer such Advance Facility. (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Facility Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Facility Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable for any errors~~ included in ~~such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ distributions to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory~~ Certificateholders. An Advance Facility Counterparty whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making of ~~any Advancing Person or Advance~~ Facility ~~Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject to Advance Facilities pursuant to~~ a Subservicer under this ~~Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances~~ Agreement or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ meet the ~~reimbursement of Advances and Servicing Advances in the manner provided~~ criteria for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, qualification as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in Subservicer under this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Af1), Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Af2), Pooling and Servicing Agreement (GMACM Mortgage Loan Trust 2006-J1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee; provided, however, the Trustee shall maintain records with respect to the payment of such Reimbursement Amounts as it does with respect to other distributions made pursuant to this Agreement. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents~~ acknowledgments reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (RALI Series 2006-QA1Trust), Pooling and Servicing Agreement (RALI Series 2006-Qo1 Trust), Pooling and Servicing Agreement (RALI Series 2006-Qa2 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the Master Servicer sells, assigns or pledges to another Person (an "“Advancing Person"”) the Master Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's ’s behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) ~~hereof~~ and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii~~) hereof~~), assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, first out" ” ("“FIFO"”) basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to ~~Residential Funding~~ the Master Servicer (a "“Successor Master Servicer"”) and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than ~~Residential Funding~~ the Master Servicer or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, ~~Residential Funding~~ the Master Servicer shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by ~~Residential Funding~~ the Master Servicer to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require ~~Residential Funding~~ the Master Servicer to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "“Notice of Facility Termination"”), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (SG Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Mortgage Securities, LLC), Pooling and Servicing Agreement (SG Mortgage Securities, LLC)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonably satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any ~~class~~ Class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2006-Emx9 Trust), Pooling and Servicing Agreement (RASC Series 2006-Ks9 Trust), Pooling and Servicing Agreement (RASC Series 2006-Ks9 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp), Pooling and Servicing Agreement (RASC Series 2006-Ks2 Trust), Pooling and Servicing Agreement (Residential Asset Securities Corp)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer shall identify amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Advances ("“Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)) as such amounts are received, ~~as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent~~ consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. If the Servicer making an election to remit Reimbursement Amounts to the Trustee it shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election ~~set forth~~ to remit Reimbursement Amounts to the Trustee as described in Section 3.22(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.22 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii~~Sections 3.07(d)(ii) and 3.09(a)(ii), (iii) and (~~vii~~iv) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Reimbursement Amounts to the ~~related Advancing Person or~~ Trustee, shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on the Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Trustee pursuant to Section 3.09(a)(viii) or (ix). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any~~ Servicer entering into an Advance Facility shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed~~ remitted to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person~~ Distribution Date or ~~Advance Facility Trustee~~otherwise, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (CSFB Home Equity Pass-Through Certificates, Series 2005-Fix1), Pooling and Servicing Agreement (CSFB Home Equity Pass-Through Certificates, Series 2005-Age1), Pooling and Servicing Agreement (CSFB Home Equity Pass-Through Certificates, Series 2005-Fix1)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement, which provides that the Servicer may pledge or sell its rights to receive reimbursement of Advances, advances of taxes pursuant to Section 3.01(b) and advances of insurance pursuant to Section 3.12 (collectively, "Facility Advances") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of ~~the Depositor~~Facility Advances, ~~the Trustee, the Certificateholders~~ including facilities providing that such Advance Facility Counterparty may make all or ~~any other party shall be required before the Master Servicer may enter into an Advance Facility~~a portion of Facility Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Facility Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Facility Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Facility Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.10 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated in writing to the Trustee by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account, and ~~if so directed in writing~~ the ~~Trustee is hereby authorized to and~~ Servicer shall pay to the Advance Facility ~~Trustee~~ Counterparty or the Advance Facility Trustee, the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. ~~An Advancing Person whose obligations hereunder are limited~~ The Trustee shall have no obligation with respect to the ~~funding~~ calculation or payment of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any Advance Reimbursement ~~Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution~~ Amount ~~or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a)~~nor, ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee~~ as a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction result of the ~~Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination~~ existence of any Advance Facility ~~pursuant~~ shall the Trustee have any obligation to ~~this Section 3.22(b)~~track, monitor or administer such Advance Facility. (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Facility Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Facility Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable for any errors~~ included in ~~such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ distributions to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory~~ Noteholders. An Advance Facility Counterparty whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making of ~~any Advancing Person or Advance~~ Facility ~~Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject to Advance Facilities pursuant to~~ a Subservicer under this ~~Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances~~ Agreement or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ meet the ~~reimbursement of Advances and Servicing Advances in the manner provided~~ criteria for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, qualification as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in Subservicer under this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar1), Pooling and Servicing Agreement (GMACM Mortgage Pass-Through Certificates Series 2004-Ar2), Pooling and Servicing Agreement (GMAC Mortgage Pass-Through Certificates, Series 2004-Ar1)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Indenture Trustee,the Master Servicer, the ~~Certificateholders~~ Securities Administrator the Noteholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement in writing prior to or promptly after entering into or terminating any Advance Facility stating the identity of the Advancing Person. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall ~~identify~~ identify, in the Officer’s Certificate described in the next two sentences, such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the ~~Trustee~~ Securities Administrator is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An To the extent that an Advancing Person ~~whose obligations hereunder are limited~~ funds any Advance and the Servicer provides the Securities Administrator and Master Servicer with an Officer’s Certificate that such Advancing Person is entitled to reimbursement, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the ~~funding~~ extent provided in this section. Such Officer’s Certificate must specify the amount of ~~Advances and/or Servicing Advances shall not be required to meet~~ the ~~qualifications~~ reimbursement, the remittance date, the Section of ~~a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed~~ this Agreement that permits the applicable Advance to be ~~a Subservicer~~ reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to request reimbursement from the Securities Administrator, rather than the Servicer, or proof of an event of default by the Servicer under ~~this Agreement~~the Advance Facility entitling the Advancing Person to reimbursement from the Securities Administrator. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or ~~distributed~~ paid to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution DatesNoteholders. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future ~~distribution~~ payment to ~~Certificateholders~~ Noteholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor, Master Servicer, Securities Administrator or the Indenture Trustee shall have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and shall be entitled to rely, without independent investigation, on the Officer’s Certificate provided pursuant to this Section 3.29, nor shall the ~~Company~~ Depositor, Master Servicer, Securities Administrator or the Indenture Trustee have any responsibility to track or monitor the administration of ~~the~~ any Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor servicer and (upon request) the Indenture Trustee, Master Servicer or Securities Administrator a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor ~~Master~~ Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the Successor ~~Master~~ Servicer shall not be liable for any errors in such information. . Any Successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the Successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the ~~Trustee~~ Securities Administrator agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Indenture Trustee, the Owner Trustee, the Master Servicer, the Securities Administrator, any Successor Servicer and the Trust for any loss, liability or damage resulting from any Advance Facility, including, without limitation, any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Indenture Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Indenture Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Noteholder but with the consent of the Majority Certificateholder, provided such amendment complies with ~~written confirmation from~~ Section 7.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of each ~~Rating Agency that~~ party hereto of any such amendment shall be borne solely by the ~~amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and~~ Servicer. Prior to entering into an ~~opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund~~Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and none of the ~~delivery of a written notice signed~~ Indenture Trustee, the Securities Administrator nor the Trust are otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and (b) none of the Indenture Trustee, Master Servicer or ~~its successor~~ Securities Administrator shall have any responsibility to calculate any Reimbursement Amounts or ~~assign)~~ to track or monitor the ~~Trustee terminating~~ administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Advance Facility. ~~(a)~~ The ~~Master Servicer~~ Servicer, with the consent of the NIMS Insurer, is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party (other than the NIMS Insurer consent) shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify the NIMS Insurer and each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master Servicer enters~~ terms of a facility proposed to be entered into with an ~~Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related~~ Advancing Person by the Trust Fund would not materially and adversely affect the interests of any Certificateholder, then the NIMS Insurer shall ~~deliver~~ not withhold its consent to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent Trust Fund’s entering such ~~type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates~~facility. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, the NIMS Insurer, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee, the NIMS Insurer or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any ~~Certificateholder, with written confirmation from each Rating Agency that~~ Certificateholder but the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on~~ NIMS Insurer, provided such ~~Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in~~ amendment complies with Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advance financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh4)

Advance Facility. (a) ~~The Master Servicer is~~ Ocwen and Wilshire are each hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) ~~the Master Servicer sells~~Ocwen or Wilshire, as applicable, assigns or pledges to another Person (an "Advancing Person") ~~the Master~~ such Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, may enter into an Advance Facility; PROVIDED, HOWEVER, that the consent of the Trustee (which consent shall not be unreasonably withheld) shall be required before Ocwen or Wilshire, as applicable, may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on ~~the Master~~ such Servicer's behalf, ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If ~~the Master Servicer~~ Ocwen or Wilshire enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then Ocwen or Wilshire, as applicable, may elect by providing written notice to the Trustee not to be permitted to reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.08 of this Agreement, but following any such election Ocwen or Wilshire, as applicable, shall be required to include amounts collected that would otherwise be retained by Ocwen or Wilshire, as applicable, to reimburse it for previously unreimbursed Advances ("Advance Reimbursement Amounts") and/or previously unreimbursed Servicing ~~Advances including Nonrecoverable~~ Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ related Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementCash Remittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Ocwen or Wilshire, as applicable, if making the election set forth herein, shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If ~~the Master Servicer~~ Ocwen or Wilshire enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an "Advance Facility ~~Trustee~~ Trustee") designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; PROVIDED, HOWEVER, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.21 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.08(ii), (iii) and (~~vii~~iv) hereof, assuming ~~the Master Servicer~~ Ocwen or ~~the Advancing Person~~ Wilshire, as applicable, had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ applicable Servicer's report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from Ocwen or Wilshire, as applicable, to the ~~related Advancing Person~~ Trustee pursuant to Section 3.08(viii). Ocwen or ~~Advance Facility Trustee. The Master Servicer~~ Wilshire, as applicable, shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a Subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which Ocwen or Wilshire has made the election set forth in Section 3.21(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, ~~first~~ first-out" ("FIFO") basis~~, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ . Such documentation shall also require Ocwen or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event thatWilshire, as ~~a result of the FIFO allocation made pursuant to this Section 3.22(e)~~applicable, some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration~~. Ocwen or Wilshire, ~~and not~~ as applicable, shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master Servicer~~ Ocwen or Wilshire, as applicable, to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (gf) If Ocwen or Wilshire enters into an Advance Facility, Ocwen or Wilshire, as applicable, shall indemnify the Trustee and the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the successor Servicer or the Trustee, or failure by the successor Servicer or the Trustee to remit funds as required by Section 3.21(b). Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Seller and Ocwen or Wilshire, ~~Company and the Master Servicer~~ as applicable, without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), Certificateholder notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mort Home Equity Trust 2003-4), Pooling and Servicing Agreement (Credit Suisse First Boston Mort Sec Corp Home Eq Mo Tr 03 7), Pooling and Servicing Agreement (Home Equity Mortgage Pass-Through Certificates Series 2003-6)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Certificate Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master ~~Servicer~~ Servicer, and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonably satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any ~~class~~ Class of the Certificates below the lesser of the then current or original ratings on such ~~Certificates,~~ Certificates and delivery of an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by under Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2007-Ks2 Trust), Pooling and Servicing Agreement (RASC Series 2007-Ks3 Trust), Pooling and Servicing Agreement (RASC Series 2007-Ks2 Trust)

Advance Facility. (a) ~~The Master~~ With the prior written consent of FSA, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ (other than FSA) is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer may elect by providing written notice to the Trustee not to be permitted to reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.09(a) of this Agreement, but following any such election the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Advances ("“Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making the election set forth herein shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.22 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.09(ii), (iii) and (~~vii~~iv) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. Neither the ~~Company~~ Trustee nor ~~the Trustee~~ FSA shall have any duty or liability with respect to the calculation of any Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person~~ Trustee pursuant to Section 3.09(a)(viii) or ~~Advance Facility Trustee~~(ix). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer and (upon request) to FSA a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which the Servicer has made the election set forth in Section 3.22(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, FSA is not and shall not be responsible to track or monitor Reimbursement Amounts or any Advance Facility, and is not and shall not be obligated to make any payment with respect to any Reimbursement Amount. If the Servicer enters into an Advance Facility it shall indemnify FSA, the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the FSA, the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.22, the Servicer shall consult with FSA in determining the manner in which any Advance Facility shall affect a successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of ~~the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~FSA, notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Home Equity Asset Trust 2002-3), Pooling and Servicing Agreement (Credit Suisse First Boston Mor Acc Cor Ho Eq Asset Tr 2002-5), Pooling and Servicing Agreement (Home Equity Pass Through Certificates Series 2002-4)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee; provided, however, the Trustee shall maintain records with respect to the payment of such Reimbursement Amounts as it does with respect to other distributions made pursuant to this Agreement. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, ~~and an opinion of counsel as required by Section 11.01(c),~~ notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.21 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RAMP Series 2004-Sl4 Trust), Pooling and Servicing Agreement (RAMP Series 2005 SL2 Trust)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (an “Advance Facility”) with any Person (any such ~~arrangement~~Person, an "“Advance ~~Facility") under which (1)~~ Facility Counterparty”), without the ~~Master Servicer sells, assigns or pledges~~ consent of any party to ~~another Person (an "Advancing Person") the Master Servicer's rights under~~ this Agreement or the Insurer, which provides that the Servicer may pledge or sell its rights (the “Advance Reimbursement Rights”) to ~~be reimbursed for~~ receive reimbursement of any ~~Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be~~ advances made by the ~~Master~~ Servicer in respect of Advances pursuant to this Agreement~~. No consent~~ , Servicing Advances pursuant to this Agreement, or amounts in respect of taxes and premiums advanced pursuant to Section 3.08(c) (“Tax/Premium Amounts”) pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the ~~Depositor~~funding of Advances, ~~the Trustee~~Servicing Advances or Tax/Premium Amounts, ~~the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility~~as applicable. Notwithstanding the existence of any Advance ~~Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf~~Facility, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances, Servicing Advances and ~~Servicing Advances~~ Tax/Premium Amounts pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances~~ Advances, including Nonrecoverable Advances related thereto ("“Monthly Advance Reimbursement Amounts~~") and/or~~ ”), Servicing ~~Advances~~ Advances, including Nonrecoverable Advances related thereto ("“Servicing Advance Reimbursement Amounts~~" and~~ ”) and/or Tax/Premium Amounts (“Tax/Premium Reimbursement Amounts” and, together with Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, "“Advance Reimbursement Amounts"”) (in each case to the extent that such type of Advance Reimbursement Amount is included in the Advance Facility), as applicable, ~~pursuant to this Agreement,~~ then the ~~Master~~ Servicer shall identify such Advance Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in Section ~~3.10(a)(ii)~~ 3.10, and ~~(vii) and~~ shall remit such Advance Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Trustee, as applicable, and the Servicer and the Trustee, if so ~~directed in writing the Trustee~~ directed, is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement Amounts identified pursuant to the preceding sentence. ~~An Advancing Person whose obligations hereunder are limited~~ The Trustee shall have no obligation with respect to the ~~funding~~ calculation or payment of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any Advance Reimbursement ~~Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution~~ Amount ~~or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a)~~nor, ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee~~ as a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction result of the ~~Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination~~ existence of any Advance Facility ~~pursuant~~ shall the Trustee have any obligation to ~~this Section 3.22(b). (c)~~ track, monitor or administer such Advance Facility. -71- Pooling and Servicing Agreement Advance Reimbursement Amounts shall consist solely of amounts in respect of Advances, Servicing Advances and/or ~~Servicing Advances~~ Tax/Premium Amounts made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement. Advance Reimbursement Amounts that the Servicer is entitled to be paid shall not be included in Available Distribution Amounts or distributed to Certificateholders. An Advance Facility Counterparty whose obligations are limited to the making of Advances, ~~assuming~~ Servicing Advances and/or Tax/Premium Amounts will not be deemed to be a Subservicer under this Agreement or be required to meet the ~~Master Servicer~~ criteria for qualification as a Subservicer under this Agreement. Advance Reimbursement Amounts allocated to reimburse Advances, Servicing Advances or ~~the Advancing Person had~~ Tax/Premium Amounts made ~~the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except~~ with respect to any particular Mortgage Loan shall be allocated to the reimbursement of ~~Nonrecoverable~~ the unreimbursed Advances, Servicing Advances or Tax/Premium Amounts, as ~~set forth in Section 3.10(c) of this Agreement~~the case may be, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability made with respect to that Mortgage Loan on a “first-in, first out” (“FIFO”) basis, such that the ~~calculation of any~~ Advance Reimbursement Amounts shall be applied to reimburse the Advance, Servicing Advance or Tax/Premium Amount, ~~nor~~ as the case may be, for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Advance, Servicing Advance or Tax/Premium Amount, as the case may be, for that Mortgage Loan that was disbursed latest in time last. Liquidation Proceeds with respect to a Mortgage Loan shall be applied in the ~~Company or the Trustee have any responsibility~~ following order: first, to ~~track or monitor the administration of the Advance Facility or have any responsibility~~ reimburse Servicing Advances outstanding with respect to ~~track~~that Mortgage Loan, ~~monitor or verify the payment of Reimbursement~~ second, to reimburse Advances outstanding with respect to that Mortgage Loan and third, to reimburse Tax/Premium Amounts outstanding with respect to that Mortgage Loan. The Servicer shall provide to the related Advancing ~~Person~~ Facility Counterparty or Advance Facility Trustee loan-level information with respect to each Advance, Servicing Advance or Tax/Premium Amount remitted to such Advance Facility Counterparty or Advance Facility Trustee, to enable the Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance, Servicing Advance or Tax/Premium Amount with respect to each Mortgage Loan. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon ~~the direction of and at the expense~~ request of the ~~Master~~ Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee provided by the Master Servicer~~ recognizing the interests of any ~~Advancing Person or~~ Advance Facility ~~Trustee~~ Counterparty in such Advance Reimbursement ~~Amounts~~ Rights as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GMACM Mortgage Pass-Through Cerificates, Series 2004-J5), Pooling and Servicing Agreement (GMACM Mortgage Pass-Through Cerificates, Series 2004-J5)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility with any Person (any such ~~arrangement~~Person, an "“Advance ~~Facility"~~Facility Counterparty”) under which ~~(1)~~ the ~~Master~~ Servicer ~~sells, assigns~~ may pledge or ~~pledges~~ sell its rights to ~~another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any~~ receive reimbursement of Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement (“Advance Reimbursement Rights”) pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of Advances or Servicing Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the Advances ~~and~~ or Servicing Advances ~~pursuant~~ (any such facility, an “Advance Facility”), although no Advance Facility shall reduce or otherwise affect the Servicer’s obligations to ~~and as required by this Agreement~~fund such Advances or Servicing Advances. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of an Advance Facility, to the extent that an Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Counterparty and the Servicer provide the Trustee and the NIMS Insurer, if any, with notice acknowledged by the Servicer that such Advance Facility Counterparty is entitled to reimbursement, such Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided. Such notice from the Advance Facility Counterparty, if so required, and the Servicer must specify the amount of the reimbursement and must specify which Section of this Agreement permits the Advance to be reimbursed. The Trustee and the NIMS Insurer, if any, shall be entitled to rely without independent investigation on the Advance Facility Counterparty’s statement with respect to the amount of any reimbursement pursuant to this Section 3.20 and with respect to the Advance Facility Counterparty’s statement with respect to the Section of this Agreement permits the Advance to be reimbursed. An Advance Facility Counterparty whose obligations are limited to the making of Advances or Servicing Advances will not be deemed to be a subservicer under this Agreement. (b) If so required pursuant to the terms of an Advance Facility, the ~~Master~~ Servicer ~~may direct, and if so directed in writing the Trustee~~ is hereby authorized to and shall pay to the Advance Facility ~~Trustee~~ Counterparty, or cause the ~~Reimbursement Amounts identified pursuant~~ payment to the ~~preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of~~ Advance Facility Counterparty of, (i) reimbursements for Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing ~~Advance Reimbursement Amounts~~ Advances; and (ii) all or such portion of the Servicing Fee as may be ~~included~~ so specified in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility~~) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to~~ , that would otherwise be ~~distributed~~ payable to the ~~Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master~~ Servicer ~~and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility~~ pursuant to this ~~Section 3.22(b)~~Agreement. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration Upon request of the ~~Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master~~ Servicer ~~shall maintain~~ and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided provision by the ~~Master~~ Servicer ~~and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction~~ of ~~and at the expense of the Master Servicer~~all necessary forms, the Trustee agrees to execute such reasonable acknowledgments, ~~certificates~~ certificates, and other reasonable documents ~~reasonably satisfactory to the Trustee provided by the Master Servicer~~ recognizing the interests of any ~~Advancing Person or~~ Advance Facility ~~Trustee~~ Counterparty in such Advance Reimbursement ~~Amounts~~ Rights and Servicing Fees as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.20, and such other documents in connection with such Advance Facilities as may be reasonably requested from time to time by any Advance Facility Counterparty. The implementation of the arrangement described in this Section shall not require the consent of Certificateholders, the NIMS Insurer, if any, or the Trustee. (ed) ~~Reimbursement Amounts collected~~ The Servicer shall indemnify the Trustee, the Trust Fund, each Certificateholder and any NIMS Insurer for any and all claims, losses, liabilities, damages, costs and expenses resulting from any claim by the Advance Facility Counterparty, except (with respect to ~~each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as~~ the ~~case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any~~ Trustee and any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (Aservicer) to the extent that ~~any Advances~~ such claim, loss, liability, damages or ~~Servicing Advances with respect to any particular Mortgage Loan are reimbursed~~ expense results from ~~payments~~ or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent arises out of the ~~interest~~ negligence, recklessness or willful misconduct of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or ~~Master Servicer pursuant~~ successor servicer, or failure by the Trustee or successor servicer to remit funds as required by this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the ~~Advancing Person~~ commission of any act or ~~Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required~~ an omission to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed act by the ~~Advancing Person~~ Trustee or ~~Advance Facility Trustee~~ successor servicer and the expiration of any applicable cure or grace period such that an Event of Default under this Agreement occurs or such entity is subject to termination for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loancause under this Agreement. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (ge) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this ~~Section 3.22~~Section, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the ~~Trustee~~Seller, the ~~Certificate Insurer~~Depositor, ~~Company~~ the Servicer, the Credit Risk Manager and the ~~Master Servicer~~ Trustee without the consent of any Certificateholder, provided that such amendment is otherwise effected in compliance with ~~written confirmation from~~ the provisions of Section 11.01. All reasonable costs and expenses (including attorneys’ fees) incurred by each ~~Rating Agency~~ party hereto or incurred by (or that would otherwise be incurred by) the ~~amendment will not result in~~ Trust Fund shall be borne solely by the ~~reduction of the ratings on~~ Servicer. The parties hereto acknowledge and agree that (i) any ~~class of the Certificates below the lesser of the then current or original ratings on such Certificates, and~~ Advances and/or Servicing Advances financed by and/or pledged to an ~~opinion of counsel as required by Section 11.01(c), notwithstanding anything~~ Advance Facility Counterparty under any Advance Facility are obligations owed to the ~~contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that~~ Servicer payable only from the ~~Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer~~ cash flows and proceeds received under this Agreement ~~shall not attach~~ for reimbursement of Advances and/or Servicing Advances to the extent provided herein, and the Trustee is not, as a result of the existence of any ~~rights~~ Advance Facility, obligated or liable to ~~be reimbursed for~~ repay any Advances or Servicing Advances ~~that have been sold, transferred, pledged, conveyed or assigned~~ financed by the Advance Facility Counterparty; (ii) the Servicer will be responsible for remitting to ~~any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding~~ the Advance Facility Counterparty the applicable amounts collected by it as reimbursement for Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed funded by ~~the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating~~ the Advance Facility ~~Notice~~ Counterparty, subject to the provisions of this Agreement; and (iii) the ~~"Notice~~ Trustee shall not have any responsibility to track or monitor the administration of ~~Facility Termination"),~~ the ~~Master~~ financing arrangement between the Servicer ~~or its Successor Master Servicer shall again be entitled to withdraw~~ and ~~retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of~~ any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing PersonCounterparty.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (AEGIS ASSET BACKED SECURITIES TRUST Mortgage Pass-Through Certificates, Series 2004-3), Pooling and Servicing Agreement (AEGIS ASSET BACKED SECURITIES TRUST Mortgage Pass-Through Certificates, Series 2004-4)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary contained herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or be distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s)~~. Notwithstanding~~ . (c) None of the ~~foregoing~~Master Servicer, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (e) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Seller, the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Seller, the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (g) Any amendment to this Section ~~3.22~~ 3.25 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.25, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), Certificateholder notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2005-He3), Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2005-He1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master Servicer and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RASC Series 2004-Ks10 Trust), Pooling and Servicing Agreement (RASC Series 2004-Ks8 Trust)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering into such Advance Facility, the Servicer must provide written notification to Xxxxx’x that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary contained herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or be distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s)~~. Notwithstanding~~ . (c) None of the ~~foregoing~~Master Servicer, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (e) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Seller, the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Seller, the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (g) Any amendment to this Section ~~3.22~~ 3.25 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.25, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Securitization Servicing Agreement (Fremont Home Loan Trust 2004-3), Securitization Servicing Agreement (Structured Asset Investment Loan Trust 2004-7)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed ~~therefor~~ xxxxxxxx have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2006-S4 Trust), Pooling and Servicing Agreement (RFMSI Series 2006-S10 Trust)

Advance Facility. ~~(a)~~ The ~~Master Servicer~~ Servicer, with the consent of the NIMS Insurer, is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party (other than the NIMS Insurer consent) shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify the NIMS Insurer and each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master Servicer enters~~ terms of a facility proposed to be entered into with an ~~Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related~~ Advancing Person by the Trust Fund would not materially and adversely affect the interests of any Certificateholder, then the NIMS Insurer shall ~~deliver~~ not withhold its consent to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent Trust Fund’s entering such ~~type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates~~facility. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, the NIMS Insurer, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee, the NIMS Insurer or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any ~~Certificateholder,~~ Certificateholder but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on~~ NIMS Insurer, provided such ~~Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in~~ amendment complies with Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of ~~or elsewhere~~ each party hereto of any such amendment shall be borne solely by the Servicer. Prior to entering into an Advance Facility, the Servicer shall notify the Advancing Person in ~~this Agreement.~~writing that: (ha) ~~Any rights of set-off that~~ the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt2), Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt4)

Appears in 2 contracts

Samples: Series Supplement to Pooling and Servicing Agreement (RALI Series 2004-Qs8 Trust), Series Supplement to Pooling and Servicing Agreement (RALI Series 2004-Qs8 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement or the Credit Enhancer, which provides that the Servicer may pledge or sell its rights to receive reimbursement of any advances ("Servicer Advances") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. Advances. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in Section ~~3.10(a)(ii)~~ 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Indenture Trustee in writing to withdraw, as applicable, and the Servicer shall, or if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee (in each case identified to it in writing by the Servicer) the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the ~~Mortgage~~ Home Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan. A copy of such information shall be delivered to the Credit Enhancer. (iie) ~~By way~~ Upon request of ~~illustration~~the Servicer, the Indenture Trustee agrees to execute such acknowledgments, certificates, and ~~not by way~~ other documents recognizing the interests of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or any Advance Facility ~~Trustee, then all payments and recoveries received from~~ Counterparty in such Advance Reimbursement Rights as the ~~related Mortgagor or received in the form of Liquidation Proceeds with respect~~ Servicer may cause to ~~such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will~~ be ~~allocated first~~ made subject to ~~the Advancing Person or~~ Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan Facilities pursuant to this Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above3.20. (f) The ~~Master Servicer~~ Indenture Trustee shall ~~remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold~~not, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as ~~described generally in this Section 3.22, including amendments to add provisions relating to~~ a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result ~~in the reduction~~ of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, ~~and until~~ have any ~~such~~ duty or liability with respect to the calculation of any Advance ~~Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ Reimbursement Amount nor have any responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing Person~~Advance Facility.

Appears in 2 contracts

Samples: Servicing Agreement (GMACM Home Loan Trust 2006-Hltv1), Servicing Agreement (GMACM Home Loan Trust 2004-Hltv1)

Advance Facility. (a) ~~The Master~~ With the prior consent of the Certificate Insurer, the Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement~~. If the Master~~ , and if Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to Section 3.02(b), Section 3.03(ii) or Section 3.03(vi) of this Agreement, but instead the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent such type of Servicer Reimbursement Amount is included in the Advance Facility), ~~as applicable,~~ in the remittance to the Trustee made pursuant to Section 3.03(i) of this Agreement, ~~then~~ to the extent of amounts on deposit in the Collection Account on the related Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ “Available ~~Distribution Amount~~ Funds” or distributed to Certificateholders. If the Servicer makes a remittance to the Trustee of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Trustee the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 3.15. Neither the ~~Company~~ Trustee nor the ~~Trustee~~ Certificate Insurer shall have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer and (upon request) the Certificate Insurer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) The documentation establishing any Advance Facility shall require that Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, the Certificate Insurer is not and shall not be responsible to track or monitor Servicer Reimbursement Amounts or any Advance Facility, and is not and shall not be obligated to make any payment with respect to any Servicer Reimbursement Amount. The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Certificate Insurer, the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.20, the Servicer shall consult with the Certificate Insurer in determining the manner in which any Advance Facility shall affect a successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~Certificate Insurer, notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Ser 2002-4), Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Series 2002-3)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.subsequent

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Residential Asset Securities Corp), Pooling and Servicing Agreement (RASC Series 2005-Ks2 Trust)

Advance Facility. (a) Each of the Administrator and the Indenture Trustee is authorized to execute such documents and enter into such agreements as shall be necessary or appropriate in order to effectuate the purposes of the Initial Advance Facility. Until the Initial Advance Facility has been terminated, no amendment to this Agreement relating to the reimbursement of Advances shall be made without the prior written consent of the Initial Advance Facility Counterparty. (b) The ~~Master~~ Servicer is hereby ~~authorized~~ authorized, following the termination of the Initial Advance Facility, to enter into ~~a financing or other~~ any facility with any Person (any such ~~arrangement~~Person, an "“Advance ~~Facility"~~Facility Counterparty”) under which ~~(1)~~ the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may ~~enter into an Advance Facility. Notwithstanding the existence~~ pledge or sell its rights to receive reimbursement of ~~any Advance Facility under which an Advancing Person agrees to fund~~ Advances ~~and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated~~ pursuant to this Agreement ~~to make Advances and Servicing Advances~~ (“Advance Reimbursement Rights”) pursuant to ~~and as required by this Agreement~~credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the Advances (any such facility, an “Advance Facility”), although no Advance Facility shall reduce or otherwise affect the Servicer’s obligations to fund such Advances. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of an Advance Facility, to the extent that an Advance Facility Counterparty makes all or a portion of any Delinquency Advance and the Advance Facility Counterparty and the Servicer provide the Administrator with notice acknowledged by the Servicer that such Advance Facility Counterparty is entitled to reimbursement, such Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided. Such notice from the Advance Facility Counterparty, if so required, and the Servicer must specify the amount of the reimbursement and must specify which Section of this Agreement permits the Delinquency Advance to be reimbursed. The Administrator shall be entitled to rely without independent investigation on the Advance Facility Counterparty’s statement with respect to the amount of any reimbursement pursuant to this Section 3.20 and with respect to the Advance Facility Counterparty’s statement with respect to the Section of this Agreement that permits the Delinquency Advance to be reimbursed. An Advance Facility Counterparty whose obligations are limited to the making of Advances will not be deemed to be a subservicer under this Agreement. (c) If so required pursuant to the terms of an Advance Facility, the ~~Master~~ Servicer ~~may direct, and if so directed in writing the Trustee~~ is hereby authorized to and shall pay to the Advance Facility ~~Trustee~~ Counterparty, or cause the ~~Reimbursement Amounts identified~~ payment to the Advance Facility Counterparty of, (i) reimbursements for Advances; and (ii) all or such portion of the Servicing Fee as may be so specified in the Advance Facility, that would otherwise be payable to the Servicer pursuant to this Agreement, it being understood that neither the ~~preceding sentence. An Advancing Person whose obligations hereunder are limited~~ Trust nor any party hereto shall have a right or claim (including without limitation any right of offset) to the ~~funding~~ portion of the Servicing Fee or the Servicer’s right to reimbursement of Advances ~~and/or~~ so assigned, provided that any successor Servicer shall have no obligation to pay any portion of the Servicing Fee or its right to reimbursement of Advances ~~shall not be required~~ to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any such Advance ~~Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders~~Facility. (bd) ~~If the Master Servicer enters into~~ Whether or not an Advance Facility ~~and makes the election set forth~~ is in ~~Section 3.22(a)~~place, ~~the Master Servicer and the related Advancing Person shall deliver~~ reimbursement amounts allocated to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing reimburse Advances made with respect to any particular Mortgage Loan shall be allocated to the ~~Mortgage Loans for which~~ reimbursement of the ~~Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had~~ unreimbursed Advances made ~~the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except~~ with respect to that Mortgage Loan on a “first-in, first out” (“FIFO”) basis, such that the reimbursement ~~of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person~~ amounts shall be ~~entitled~~ applied to ~~reimbursement from funds held~~ reimburse the Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the ~~Collection Account~~ Advance for ~~future distribution to Certificateholders pursuant to this Agreement~~that Mortgage Loan that was disbursed latest in time last. ~~Neither the Company nor the Trustee shall have any duty or liability~~ Liquidation Proceeds with respect to ~~the calculation of any Reimbursement Amount, nor~~ a Mortgage Loan shall ~~the Company or the Trustee have any responsibility~~ be applied to ~~track or monitor the administration of the Advance Facility or have any responsibility~~ reimburse Servicing Advances outstanding with respect to ~~track, monitor or verify the payment of Reimbursement Amounts~~ that Mortgage Loan before being applied to reimburse Delinquency Advances outstanding with respect to that Mortgage Loan. The Servicer shall provide to the related ~~Advancing Person or~~ Advance Facility ~~Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a~~ Counterparty loan-by-loan ~~basis as~~ information with respect to ~~amounts advanced by~~each reimbursement amount remitted to such Advance Facility Counterparty, ~~sold, pledged or assigned to, and reimbursed~~ to ~~any Advancing Person. The Successor Master Servicer shall be entitled~~ enable the Advance Facility Counterparty to ~~rely on any~~ make the FIFO allocation of each such ~~information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information~~reimbursement amount with respect to each Mortgage Loan. (de) Upon ~~the direction of and at the expense~~ request of the ~~Master Servicer~~Servicer and provision by the Servicer of all necessary forms, the ~~Trustee~~ Administrator agrees to execute such reasonable acknowledgments, ~~certificates~~ certificates, and other reasonable documents ~~reasonably satisfactory to the Trustee provided by the Master Servicer~~ recognizing the interests of any ~~Advancing Person or~~ Advance Facility ~~Trustee~~ Counterparty in such Advance Reimbursement ~~Amounts~~ Rights and Servicing Fees as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor3.20, and ~~Liquidation Proceeds or Insurance Proceeds, if any,~~ such other documents in connection with ~~respect~~ such Advance Facilities as may be reasonably requested from time to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made time by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality Counterparty. The implementation of the ~~foregoing, if~~ arrangement described in this Section shall not require the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form consent of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this AgreementNoteholders, the ~~reimbursement paid in this manner will be made pro rata to~~ Administrator or the ~~Advancing Person or Advance Facility~~ Indenture Trustee~~, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above~~. (f) The ~~Master~~ Servicer shall ~~remain entitled~~ indemnify the Indenture Trustee, the Administrator, the Master Servicer, the Trust and each Noteholder for any and all claims, losses, liabilities, damages, costs and expenses resulting from any claim by the Advance Facility Counterparty, except (with respect to ~~be reimbursed for all Advances and Servicing Advances funded by~~ the Indenture Trustee, the Administrator, the Master Servicer and any successor Servicer) to the extent that such claim, loss, liability, damages or expense results from or arises out of the ~~related rights to be reimbursed therefor have not been sold~~negligence, ~~assigned~~ recklessness or ~~pledged to an Advancing Person~~willful misconduct of the Indenture Trustee, the Administrator, the Master Servicer or successor Servicer, as applicable. (g) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this ~~Section 3.22~~Section, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the ~~Trustee~~Issuer, the ~~Certificate Insurer~~Seller, ~~Company~~ the Depositor, the Servicer, the Master Servicer, the Administrator, the Custodian, [the Credit Risk Manager] and the ~~Master Servicer~~ Indenture Trustee without the consent of any ~~Certificateholder~~Noteholder, provided that such amendment is otherwise effected in compliance with ~~written confirmation from~~ the provisions of Section 10.1. All reasonable costs and expenses (including attorneys’ fees) incurred by each ~~Rating Agency~~ party hereto or incurred by (or that would otherwise be incurred by) the ~~amendment will not result in~~ Trust shall be borne solely by the ~~reduction of the ratings on~~ Servicer. The parties hereto acknowledge and agree that (i) any ~~class of the Certificates below the lesser of the then current or original ratings on such Certificates, and~~ Advances financed by and/or pledged to an ~~opinion of counsel as required by Section 11.01(c), notwithstanding anything~~ Advance Facility Counterparty under any Advance Facility are obligations owed to the ~~contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that~~ Servicer payable only from the ~~Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer~~ cash flows and proceeds received under this Agreement ~~shall not attach~~ for reimbursement of Advances to the extent provided herein, and none of the Master Servicer, the Administrator or the Indenture Trustee is, as a result of the existence of any ~~rights~~ Advance Facility, obligated or liable to repay any Advances financed by the Advance Facility Counterparty; (ii) the Servicer will be ~~reimbursed~~ responsible for remitting to the Advance Facility Counterparty the applicable amounts collected by it as reimbursement for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as funded by the ~~case may be) and the Advancing Person or related~~ Advance Facility Counterparty, subject to the provisions of this Agreement; and (iii) none of the Master Servicer, the Administrator or the Indenture Trustee shall have ~~received Reimbursement Amounts sufficient in~~ any responsibility to track or monitor the ~~aggregate to reimburse all Advances and/or Servicing Advances (as~~ administration of the ~~case may be)~~ financing arrangement between the ~~right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person~~ Servicer and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing PersonCounterparty.

Appears in 2 contracts

Samples: Transfer and Servicing Agreement (Aegis Asset Backed Securities Corp), Transfer and Servicing Agreement (Aegis Asset Backed Securities Corp)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If each the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then the Servicer shall identify amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Advances ("“Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)) as such amounts are received, ~~as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent~~ consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. The Servicer making an election to remit Reimbursement Amounts to the Trustee shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and makes the election ~~set forth~~ to remit Reimbursement Amounts to the Trustee as described in Section 3.22(a), the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.22 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii~~Sections 3.07(d)(ii) and 3.09(a)(ii), (iii) and (~~vii~~iv) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Reimbursement Amounts to the ~~related Advancing Person or~~ Trustee, shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on the Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Trustee pursuant to Section 3.09(a)(viii) or (ix). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any~~ Servicer entering into an Advance Facility shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed~~ remitted to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person~~ Distribution Date or ~~Advance Facility Trustee~~otherwise, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp), Pooling and Servicing Agreement (Home Equity Asset Trust 2007-2)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Indenture Trustee, the ~~Certificateholders~~ Master Servicer, the Securities Administrator, Noteholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Indenture Trustee, the Master Servicer and the Securities Administrator shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances including Nonrecoverable Advances related thereto ("“Monthly Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances related thereto ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent that such type of Servicer Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Servicer Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Servicer Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (each, an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Securities Administrator to, and if so directed ~~in writing~~ the ~~Trustee~~ Securities Administrator is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in “Available Funds” or paid to Noteholders. If the Servicer makes a remittance to the Securities Administrator of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Master Servicer and the Securities Administrator the portions of such remittance that consist of Available ~~Distribution Amount or distributed to Certificateholders~~Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and ~~makes~~ elects to remit Servicer Reimbursement Amounts to the ~~election set forth in Section 3.22(a)~~Securities Administrator, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the Trustee~~ Securities Administrator a written notice and payment instruction (an "“Advance Facility Notice"”), providing the ~~Trustee~~ Securities Administrator with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent ~~Distribution~~ Payment Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to ~~Certificateholders~~ Noteholders pursuant to ~~this Agreement~~the provisions of Section 3.15. ~~Neither~~ None of the ~~Company nor~~ Securities Administrator, the Maseter Servicer or the Indenture Trustee shall have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Servicer Reimbursement Amounts to the ~~related Advancing Person or~~ Securities Administrator, each of the Securities Administrator, the Master Servicer and the Indenture Trustee shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on the Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Securities Administrator pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any Successor Servicer and (upon request) the Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The Successor ~~Master~~ Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the Successor ~~Master~~ Servicer shall not be liable for any errors in such information. None of the Depositor, the Indenture Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect to the calculation or payment of any Servicer Reimbursement Amount, and none of the Depositor, the Indenture Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional responsibility to track or monitor the administration of such Advance Facility or the payment of Servicer Reimbursement Amounts to an Advancing Person. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-in, first out" ("FIFO")~~ FIFO basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Securities Administrator to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Payment Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, none of the Master Servicer, the Securities Administrator or the Indenture Trustee shall be responsible for tracking or monitoring Servicer Reimbursement Amounts or any Advance Facility, and none of such parties shall be obligated to make any payment with respect to any Servicer Reimbursement Amount. The Servicer who enters into an Advance Facility shall indemnify the Indenture Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer for any loss, liability or damage resulting from any claim by the related Advancing Person, except (i) in the case of the Indenture Trustee, the Securities Administrator, the Master Servicer or the Trust, (A) resulting from any such claim which arises by reason of such party’s, as applicable, willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of the such party’s reckless disregard of its obligations and duties hereunder or (B) any such claim for which such party receives indemnification from the Servicer or a Successor Servicer pursuant to Section 5.06(a), or (ii) in the case of a Successor Servicer, which claim arises by reason of such Successor Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder. Notwithstanding the foregoing, the exclusions set forth in clauses (i) and (ii) above from the Servicer’s obligation to indemnify the Indenture Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer shall not be applicable, in any case, to the extent the applicable claim, loss, liability or damage was incurred by reason of the Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder, or by reason of a breach of the Servicer’s obligations and duties under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.20, the Servicer shall consult with the Master Servicer in determining the manner in which any Advance Facility shall affect a Successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a ~~successor Master~~ Successor Servicer, may be entered into by the ~~Trustee, the Certificate Insurer, Company and the Master Servicer~~ parties hereto without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)Noteholder, notwithstanding anything to the contrary in ~~Section 11.01 of or elsewhere in~~ this Agreement. , and provided that such Amendment otherwise complies with the terms hereof. All reasonable costs and expenses (hincluding attorneys’ fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed to the Servicer payable only from the cash flows and proceeds received under this Agreement for reimbursement of Monthly Advances and/or Servicing Advances only to the extent provided herein, and the Indenture Trustee and the Trust ~~Fund~~are not, as a result of the existence of any Advance Facility, obligated or liable to repay any Monthly Advances and/or Servicing Advances financed by the Advancing Person; (ii) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Monthly Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and (iii) the Indenture Trustee, the ~~Company, any Successor~~ Master Servicer ~~or any other Person might otherwise have against~~ and the ~~Master Servicer under this Agreement~~ Securities Administrator shall not ~~attach~~ have any responsibility to ~~any rights to be reimbursed for Advances~~ track or ~~Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to~~ monitor the administration of the financing arrangement between the Servicer and any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-3), Servicing Agreement (Renaissance Home Equity Loan Trust 2005-2)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement~~. If the Master~~ , and if Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to Section 3.02(b), Section 3.03(ii) or Section 3.03(vi) of this Agreement, but instead the Servicer shall be required to include amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent such type of Servicer Reimbursement Amount is included in the Advance Facility), ~~as applicable,~~ in the remittance to the Trustee made pursuant to Section 3.03(i) of this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreementrelated Deposit Date. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ “Available ~~Distribution Amount~~ Funds” or distributed to Certificateholders. If the Servicer makes a remittance to the Trustee of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Trustee the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an “Advance Facility ~~Trustee~~ Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 3.15. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. Neither the Depositor nor the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect to the calculation or payment of any Servicer Reimbursement Amount, and neither the Depositor nor the Trustee, shall as a result of the existence of any Advance Facility have any additional responsibility to track or monitor the administration of such Advance Facility or the payment of Servicer Reimbursement Amounts to an Advancing Person. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) The documentation establishing any Advance Facility shall require that Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Seller, ~~Company~~ the Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided that such Amendment complies with ~~written confirmation from~~ Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of each ~~Rating Agency that~~ party hereto of any such amendment shall be borne solely by the ~~amendment will not result in~~ Servicer. The parties hereto hereby acknowledge and agree that: (i) the ~~reduction of the ratings on~~ Monthly Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any ~~class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything~~ Advance Facility are obligations owed to the ~~contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that~~ Servicer payable only from the ~~Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer~~ cash flows and proceeds received under this Agreement for reimbursement of Monthly Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust are not, as a result of the existence of any Advance Facility, obligated or liable to repay any Monthly Advances and/or Servicing Advances financed by the Advancing Person; (ii) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Monthly Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and (iii) the Trustee shall not ~~attach~~ have any responsibility to ~~any rights to be reimbursed for Advances~~ track or ~~Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to~~ monitor the administration of the financing arrangement between the Servicer and any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2), Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master Servicer~~ Xxxxxx Xervicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2007 S7 Trust), Pooling and Servicing Agreement (RFMSI Series 2007-S4 Trust)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, ~~then~~ then, the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation or payment of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility~~ to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information~~. (d) Upon the direction of and at the expense~~ . An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding or purchase of Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such~~ this Agreement. Reimbursement Amounts ~~as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "~~first-~~first in, first out" ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed ~~to such Advancing Person or Advance Facility Trustee on each date of remittance thereof~~ to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The ~~Master~~ Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person; (~~as the case may be~~b) the ~~right~~ Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for ~~which were assigned to~~ Advances and/or Servicing Advances funded by the Advancing Person, ~~then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign)~~ subject to the restrictions and priorities created in this Agreement; and (c) the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2003-FFC), Pooling and Servicing Agreement (Financial Asset Sec Corp First Franklin Mort Ln Tr 03 Ff1)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Sellers, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x Investors’ Service Inc. that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("Monthly Advance Reimbursement Amounts") and/or previously unreimbursed Servicing ~~Advances including Nonrecoverable~~ Advances ("Servicing Advance Reimbursement Amounts" and together with Monthly Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the "Available Distribution ~~Amount~~ Amount" or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (ed) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "~~first-~~first in, first out" ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Sellers, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Securitization Servicing Agreement (Structured Asset Securities Corp), Securitization Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2002 Bc4)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty") ), without the ~~Master Servicer's rights under~~ consent of any party to this Agreement or the Enhancer, which provides that the Servicer may pledge or sell its rights to ~~be reimbursed for any~~ receive reimbursement of Servicer Advances ~~or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer~~ pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor~~Servicer Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the ~~Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer ~~may enter into an Advance Facility~~Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Servicer Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Servicer Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw or direct the Indenture Trustee to withdraw, as applicable, from the Custodial Account, and the Servicer shall, and if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan. (iie) ~~By way~~ Upon request of ~~illustration~~the Servicer, the Indenture Trustee agrees to execute such acknowledgments, certificates, and ~~not by way of limiting~~ other documents recognizing the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery interests of any Advance Facility ~~Notice, and until any~~ Counterparty in such Advance ~~Facility Notice has been terminated by a Notice of Facility Termination,~~ Reimbursement Rights as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person~~3.16.

Appears in 2 contracts

Samples: Servicing Agreement (Gmacm Home Equity Loan Trust 2005-He2), Servicing Agreement (Gmacm Home Equity Loan Trust 2004-He5)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and ~~Servicing~~ Xxxxxxxxx Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2007-S3 Trust), Pooling and Servicing Agreement (RFMSI Series 2007-S5 Trust)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, the Master Servicer, the Securities Administrator, Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee, the Master Servicer and the Securities Administrator shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances including Nonrecoverable Advances related thereto ("“Monthly Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances related thereto ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent that such type of Servicer Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Servicer Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Servicer Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (each, an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Securities Administrator to, and if so directed ~~in writing~~ the ~~Trustee~~ Securities Administrator is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ “Available ~~Distribution Amount~~ Funds” or distributed to Certificateholders. If the Servicer makes a remittance to the Securities Administrator of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Master Servicer and the Securities Administrator the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and ~~makes~~ elects to remit Servicer Reimbursement Amounts to the ~~election set forth in Section 3.22(a)~~Securities Administrator, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the Trustee~~ Securities Administrator a written notice and payment instruction (an "“Advance Facility Notice"”), providing the ~~Trustee~~ Securities Administrator with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b)~~3.20 shall cease to be applicable when all Monthly Advances and Servicing Advances funded by an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to be reimbursed for which have been assigned or pledged to an Advancing Person, have been repaid to the related Advancing Person in full. (c) Servicer Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.03(ii) ~~and (vii~~or Section 3.03(vi) hereof, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except ~~with respect~~ to ~~reimbursement of Nonrecoverable Advances as~~ the extent set forth in Section ~~3.10(c) of this Agreement~~3.15(d), no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to ~~Certificateholders pursuant to this Agreement~~Certificateholders. ~~Neither~~ None of the ~~Company nor~~ Securities Administrator, the Master Servicer or the Trustee shall have any duty or liability with respect to the calculation of any Servicer Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Servicer Reimbursement Amounts to the ~~related Advancing Person or~~ Securities Administrator, both the Securities Administrator and the Trustee shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on the Servicer’s report of the amount of Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from the Servicer to the Securities Administrator pursuant to Section 3.03(i). The ~~Master~~ Servicer shall maintain and provide to any Successor Servicer and (upon request) the Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The Successor ~~Master~~ Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the Successor ~~Master~~ Servicer shall not be liable for any errors in such information. None of the Depositor, the Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect to the calculation or payment of any Servicer Reimbursement Amount, and none of the Depositor, the Trustee, the Master Servicer or the Securities Administrator shall, as a result of the existence of any Advance Facility, have any additional responsibility to track or monitor the administration of such Advance Facility or the payment of Servicer Reimbursement Amounts to an Advancing Person. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.01 hereof. (e) Servicer Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-in, first out" ("FIFO")~~ FIFO basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Servicer Reimbursement Amount distributed by the Securities Administrator to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Servicer Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, none of the Master Servicer, the Securities Administrator or the Trustee shall be responsible for tracking or monitoring Servicer Reimbursement Amounts or any Advance Facility, and none of such parties shall be obligated to make any payment with respect to any Servicer Reimbursement Amount. The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer for any loss, liability or damage resulting from any claim by the related Advancing Person, except (i) in the case of the Trustee, the Securities Administrator, the Master Servicer or the Trust, (A) resulting from any such claim which arises by reason of such party’s, as applicable, willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of the such party’s reckless disregard of its obligations and duties hereunder or (B) any such claim for which such party receives indemnification from the Servicer or a Successor Servicer pursuant to Section 7.06(a), or (ii) in the case of a Successor Servicer, which claim arises by reason of such Successor Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder. Notwithstanding the foregoing, the exclusions set forth in clauses (i) and (ii) above from the Servicer’s obligation to indemnify the Trustee, the Trust, the Master Servicer, the Securities Administrator and any Successor Servicer shall not be applicable, in any case, to the extent the applicable claim, loss, liability or damage was incurred by reason of the Servicer’s willful misfeasance, bad faith or negligence in the performance of its duties hereunder or by reason of its reckless disregard of its obligations and duties hereunder, or by reason of a breach of the Servicer’s obligations and duties under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.20, the Servicer shall consult with the Master Servicer in determining the manner in which any Advance Facility shall affect a Successor Servicer before the Servicer shall enter into an Advance Facility. Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.20, including amendments to add provisions relating to a ~~successor Master~~ Successor Servicer, may be entered into by the ~~Trustee, the Certificate Insurer, Company and the Master Servicer~~ parties hereto without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section ~~11.01 of~~ 12.01 hereof or elsewhere in this Agreement. , and provided that such Amendment otherwise complies with the terms hereof. All reasonable costs and expenses (hincluding attorneys’ fees) ~~Any rights~~ of ~~set-off that~~ each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (i) the Monthly Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed to the Servicer payable only from the cash flows and proceeds received under this Agreement for reimbursement of Monthly Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust ~~Fund~~are not, as a result of the existence of any Advance Facility, obligated or liable to repay any Monthly Advances and/or Servicing Advances financed by the Advancing Person; (ii) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Monthly Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and (iii) the Trustee, the ~~Company, any Successor~~ Master Servicer ~~or any other Person might otherwise have against~~ and the ~~Master Servicer under this Agreement~~ Securities Administrator shall not ~~attach~~ have any responsibility to ~~any rights to be reimbursed for Advances~~ track or ~~Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to~~ monitor the administration of the financing arrangement between the Servicer and any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3), Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed ~~therefor have~~ thexxxxx xxxe not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (RFMSI Series 2006-S5 Trust), Pooling and Servicing Agreement (RFMSI Series 2006-S6 Trust)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Back Certs Ser 2003 Ffh2), Pooling and Servicing Agreement (Financial Asset Secs Corp Asset Backed Cert Sers 2003 Ff5)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter ~~into~~ in to a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before the Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Monthly Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances including Nonrecoverable Advances related thereto ("“Monthly Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances related thereto ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Servicer Reimbursement Amounts"”) (in each case to the extent that such type of Servicer Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Servicer Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Servicer Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (each, an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Servicer Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the~~ “Available ~~Distribution Amount~~ Funds” or distributed to Certificateholders. If the Servicer makes a remittance to the Trustee of Servicer Reimbursement Amounts under Section 3.03(i) as described above, the Servicer shall report to the Trustee the portions of such remittance that consist of Available Funds, Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If the ~~Master~~ Servicer enters into an Advance Facility and ~~makes~~ elects to remit Servicer Reimbursement Amounts to the ~~election set forth in Section 3.22(a)~~Trustee, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Monthly Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Servicer Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Servicer Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that ~~after~~ the ~~succession~~ provisions of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee 3.20 shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled cease to be ~~reimbursed by the Advancing Person or Advance Facility Trustee for~~ applicable when all Monthly Advances and Servicing Advances funded by ~~Residential Funding~~ an Advancing Person, and when all Monthly Advances and Servicing Advances the rights to ~~the extent the related Reimbursement Amount(s)~~ be reimbursed for which have ~~not~~ been assigned or pledged to an Advancing ~~Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide~~ Person, have been repaid to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Renaissance Mort Acc Corp Renaissance Home Eq Ln Tr 2004 1), Pooling and Servicing Agreement (Delta Financial Corp)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty") ), without the ~~Master Servicer's rights under~~ consent of any party to this Agreement or the Enhancer, which provides that the Servicer may pledge or sell its rights to ~~be reimbursed for~~ receive reimbursement of any ~~Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be~~ advances made by the ~~Master~~ Servicer in respect of draws for HELOCs ("HELOC Advances") and any Servicer Advances pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor,~~ HELOC Advances and the ~~Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer ~~may enter into an Advance Facility~~Advances. Notwithstanding the existence of any Advance ~~Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf~~Facility, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any HELOC Advance or Servicer Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Indenture Trustee to withdraw, as applicable, and the Servicer shall, or if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration,~~ . HELOC Advances shall be reimbursed as funds are received and ~~not by way of limiting~~ available to be disbursed in reimbursement for any HELOC Advance pursuant to the ~~generality of~~ Basic Documents. The Servicer shall provide to the ~~foregoing, if the Master Servicer resigns~~ related Advance Facility Counterparty or ~~is terminated at a time when the Master Servicer is a party to an~~ Advance ~~Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances~~ Facility Trustee loan-by-loan information with respect to ~~a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts~~ each HELOC Advance remitted to ~~the related Advancing Person~~ such Advance Facility Counterparty or Advance Facility Trustee. (e) Upon request of the Servicer, ~~then all payments~~ the Indenture Trustee agrees to execute such acknowledgments, certificates, and ~~recoveries received from~~ other documents recognizing the ~~related Mortgagor or received in the form~~ interests of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or any Advance Facility ~~Trustee until~~ Counterparty in such Advance Reimbursement Rights as the ~~related Reimbursement Amounts attributable~~ Servicer may cause to ~~such Mortgage Loan that are owed~~ be made subject to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan Advance Facilities pursuant to this Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above3.21. (f) The ~~Master Servicer~~ Indenture Trustee shall ~~remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold~~not, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as ~~described generally in this Section 3.22, including amendments to add provisions relating to~~ a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result ~~in the reduction~~ of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery existence of any Advance ~~Facility Notice~~Facility, ~~and until~~ have any ~~such~~ duty or liability with respect to the calculation of any Advance ~~Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended~~ Reimbursement Amount nor have any responsibility to track or ~~otherwise modified without~~ monitor the ~~prior written consent~~ administration of the ~~related Advancing Person~~Advance Facility.

Appears in 2 contracts

Samples: Servicing Agreement (GMACM Home Equity Loan Trust 2006-He1), Servicing Agreement (GMACM Home Equity Loan Trust 2006-He4)

Advance Facility. (a) ~~The Master~~ Notwithstanding anything to the contrary contained herein, (i) the Servicer is hereby authorized to enter into ~~a financing or other~~ an advance facility (~~any such arrangement, an~~ "~~Advance Facility~~ADVANCE FACILITY") under which (1A) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2B) an Advancing Person agrees to fund some or all Advances ~~and/or~~ or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this ~~Agreement~~Agreement and (ii) the Servicer is hereby authorized to assign its rights to the Servicing Fee; it being understood that neither the Trust Fund nor any party hereto shall have a right or claim (including without limitation any right of offset) to the portion of the Servicing Fee so assigned. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances related thereto ("Advance Reimbursement Amounts") and/or Servicing ~~Advances~~ Advances, including Nonrecoverable Servicing Advances related thereto ("Servicing Advance Reimbursement Amounts" ~~and~~ and, together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent that such type of Reimbursement Amount is included in the Advance Facility), ~~as applicable, pursuant to this Agreement,~~ then the ~~Master~~ Servicer shall identify such Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall ~~Advance Reimbursement Amounts or Servicing Advance~~ Reimbursement Amounts be included in ~~the~~ Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice ~~and payment instruction~~ of the existence of such Advance Facility (an "Advance Facility Notice"), ~~providing~~ stating the ~~Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type~~ identity of ~~Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to~~ the Advancing Person ~~or to an~~ and any related Advance Facility ~~Trustee designated in the Advance Facility Notice~~Trustee. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person ~~(and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this~~ as described in Section ~~3.22(b)~~3.26(h) below. (cb) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the The Trustee shall have ~~any~~ no duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company or the~~ Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making or funding of ~~any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject~~ a Sub-servicer under this Agreement or be required to ~~Advance Facilities pursuant to~~ meet the criteria for qualification as a Sub-servicer under this ~~Section 3.22~~Agreement. (ed) Reimbursement Amounts ~~collected~~ allocated to reimburse Advances or Servicing Advances made with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject to~~ such that the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee~~ Reimbursement Amounts shall be ~~required~~ applied to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ reimburse the ~~reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances~~ Advance or Servicing ~~Advances~~ Advance (as the case may be) for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Advance or Servicing Advance (as the case may be) for that Mortgage Loan that was disbursed latest in time last. Liquidation Proceeds with respect to ~~any particular~~ a Mortgage Loan ~~are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any,~~ shall be applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Advances outstanding with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof~~ remitted to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each such Reimbursement Amount with respect to each Mortgage Loan. (e) The Servicer who enters into an Advance Facility shall indemnify the Trustee, the Trust Fund, the Depositor and any successor Servicer for any claim, loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage (i) in the case of the Depositor, was incurred by reason of the Depositor's willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of its reckless disregard of obligations and duties hereunder, (ii) ~~By way~~ in the case of ~~illustration~~a successor Servicer, was incurred by reason of such successor Servicer's willful misfeasance, bad faith or negligence in the performance of duties hereunder or by reason of its reckless disregard of obligations and ~~not~~ duties hereunder or by ~~way~~ reason of ~~limiting~~ a breach of such successor Servicer's obligations and duties under this Agreement or (iii) in the ~~generality~~ case of the Trustee or the Trust Fund, (A) resulted from a breach of the Servicer's or a successor Servicer's obligations and duties under this Agreement for which the Trustee is indemnified under Section 6.03(a) or (B) was incurred by reason of willful misfeasance, bad faith or negligence of the Trustee in the performance of its duties hereunder or by reason of the Trustee's reckless disregard of obligations and duties hereunder or as a result of a breach of the Trustee's obligations under Article VIII hereof. Notwithstanding the foregoing, if the ~~Master Servicer resigns or is terminated at a time when~~ exclusions set forth in clauses (i), (ii) and (iii) above from the ~~Master Servicer is a party~~ Servicer's obligation to ~~an Advance Facility~~indemnify the Depositor, ~~and is replaced by a Successor Master~~ any successor Servicer, the Trustee and the ~~Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does~~ Trust Fund shall not ~~assign or pledge the related Reimbursement Amounts~~ be applicable, in any case, to the ~~related Advancing Person~~ extent the applicable claim, loss, liability or ~~Advance Facility Trustee~~damage was incurred by reason of the Servicer's willful misfeasance, ~~then all payments and recoveries received from the related Mortgagor~~ bad faith or ~~received~~ negligence in the ~~form~~ performance of ~~Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with~~ duties hereunder or by reason of its reckless disregard of obligations and duties hereunder or by reason of a ~~liquidation~~ breach of ~~such Mortgage Loan) will be allocated first to~~ the ~~Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer~~ Servicer's obligations and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of duties under this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.26 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.26, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the ~~Trustee~~Depositor, the ~~Certificate Insurer, Company~~ Trustee and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in ~~Section 11.01 of or elsewhere in~~ this Agreement. (hg) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any ~~Successor Master~~ successor Servicer or any other Person might otherwise have against the ~~Master~~ Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (ih) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the ~~Master~~ Servicer ~~or its successor or assign)~~ to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the ~~Master Servicer or its Successor Master~~ Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the ~~Custodial~~ Collection Account pursuant to ~~Section 3.10~~the applicable Sections of this Agreement. (ji) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.26 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mastr Alternative Loan Trust 2005-Nc1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the Master Servicer sells, assigns or pledges to another Person (an "“Advancing Person"”) the Master Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's ’s behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Certificate Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, first out" ” ("“FIFO"”) basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to ~~Residential Funding~~ [ ] (a "“Successor Master Servicer"”) and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than ~~Residential Funding~~ [ ] or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, ~~Residential Funding~~ [ ] shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by ~~Residential Funding~~ [ ] to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require ~~Residential Funding~~ [ ] to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an ~~opinion~~ Opinion of ~~counsel~~ Counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the ~~Trust Fund~~Trust, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "“Notice of Facility Termination"”), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Phoenix Residential Securities, LLC)

Advance Facility. (a) ~~The Master~~ With the prior written consent of FSA, each Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) ~~the Master~~ each such Servicer ~~sells,~~ assigns or pledges to another Person (an "“Advancing Person"”) ~~the Master~~ such Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by ~~the Master~~ such Servicer pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ (other than FSA) is required before ~~the Master~~ such Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before such Servicer may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on ~~the Master~~ a Servicer's ’s behalf, ~~the Master~~ each such Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If ~~the Master~~ each such Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then such Servicer shall identify amounts collected that would otherwise be retained by such Servicer to reimburse it for previously unreimbursed Advances ("“Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)) as such amounts are received, ~~as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent~~ consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Trustee to, and if so directed ~~in writing~~ the Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Each Servicer making an election to remit Reimbursement Amounts to the Trustee shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If ~~the Master~~ a Servicer enters into an Advance Facility and makes the election ~~set forth~~ to remit Reimbursement Amounts to the Trustee as described in Section 3.22(a), ~~the Master~~ such Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "“Advance Facility Notice"”), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ related Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.22 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ related Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii~~Sections 3.07(d)(ii) and 3.09(a)(ii), (iii) and (~~vii~~iv) hereof, assuming ~~the Master~~ such Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. Neither the ~~Company~~ Trustee nor ~~the Trustee~~ FSA shall have any duty or liability with respect to the calculation of any Reimbursement ~~Amount~~Amount and, ~~nor shall~~ if the ~~Company or the Trustee have any responsibility~~ Servicer has elected to ~~track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of~~ remit Reimbursement Amounts to the ~~related Advancing Person or~~ Trustee, shall be entitled to rely without independent investigation on the Advance Facility ~~Trustee~~Notice and on such Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from such Servicer to the Trustee pursuant to Section 3.09(a)(viii) or (ix). ~~The Master~~ Such Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer and (upon request) to FSA a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master~~ criteria for qualification of a Sub-Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee~~ set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "“first-in, ~~first~~ first-out" ” ("FIFO") basis~~, subject to the qualifications set forth below: (i) Any successor Master~~ . Each Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has entering into an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed~~ remitted to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person~~ Distribution Date or ~~Advance Facility Trustee~~otherwise, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . Each Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master~~ such Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (f) Notwithstanding anything to the contrary in this Agreement, FSA is not and shall not be responsible to track or monitor Reimbursement Amounts or any Advance Facility, and is not and shall not be obligated to make any payment with respect to any Reimbursement Amount. Each Servicer who enters into an Advance Facility shall indemnify FSA, the Trustee, the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of FSA, the Trustee or the successor Servicer, or failure by the successor Servicer or the Trustee to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the Trustee, and the passage of any applicable cure or grace period, such that an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (g) Notwithstanding anything to the contrary in this Section 3.22, a Servicer shall consult with FSA in determining the manner in which any Advance Facility shall affect a successor Servicer before such Servicer shall enter into an Advance Facility. Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and ~~the Master~~ such Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of ~~the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~FSA, notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp. Home Equity Asset Trust 2004-3.)

Advance Facility. (a) ~~The Master~~ Notwithstanding anything to the contrary contained herein, the Servicer is hereby authorized to enter into ~~a financing or other~~ an advance facility (~~any such arrangement, an~~ "Advance Facility") under which (1i) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such person’s successors and assigns, an "Advancing Person") the ~~Master~~ Servicer~~'s rights~~ ’s right under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2ii) an Advancing Person agrees to fund some or all Advances ~~and/or~~ or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Trustee, the ~~Trustee~~Securities Administrator, the Master Servicer, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make all Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of any Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances related thereto ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Servicing Advances related thereto ("Servicing Advance Reimbursement Amounts~~" and~~ ” and, together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent that such type of Reimbursement Amount is included in the Advance Facility), ~~as applicable, pursuant to this Agreement,~~ then the ~~Master~~ Servicer shall identify such Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ this Agreement, and ~~(vii) and~~ shall remit such Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~direct the Securities Administrator to, and if so directed ~~in writing~~ the ~~Trustee~~ Securities Administrator is hereby authorized to and ~~shall~~ shall, pay to the Advancing Person or the Advance Facility ~~Trustee~~ Trustee, the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall ~~Advance Reimbursement Amounts or Servicing Advance~~ Reimbursement Amounts be included in ~~the~~ Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer~~ Trustee, the Master Servicer and the ~~Trustee~~ Securities Administrator a written notice ~~and payment instruction~~ of the existence of such Advance Facility (an "Advance Facility Notice"), ~~providing~~ stating the ~~Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type~~ identity of ~~Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to~~ the Advancing Person ~~or to an~~ and any related Advance Facility ~~Trustee designated in the Advance Facility Notice~~Trustee. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person ~~(and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this~~ as described in Section ~~3.22(b)~~3.20(h) below. (cb) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Advance(s) and/or Servicing Advance(s). ~~Notwithstanding~~ None of the ~~foregoing~~Trustee, ~~except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in~~ the ~~Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither~~ Securities Administrator or the ~~Company nor the Trustee~~ Master Servicer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Trustee, the Securities Administrator or the ~~Trustee~~ Master Servicer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making or funding of ~~any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject~~ a subservicer under this Agreement or be required to ~~Advance Facilities pursuant to~~ meet the criteria for qualification as a subservicer under this ~~Section 3.22~~Agreement. (ed) Reimbursement Amounts ~~collected~~ allocated to reimburse Advances or Servicing Advances made with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject to~~ such that the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee~~ Reimbursement Amounts shall be ~~required~~ applied to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ reimburse the ~~reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances~~ Advance or Servicing ~~Advances~~ Advance (as the case may be) for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Advance or Servicing Advance (as the case may be) for that Mortgage Loan that was disbursed latest in time last. Liquidation Proceeds with respect to ~~any particular~~ a Mortgage Loan ~~are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any,~~ shall be applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Advances outstanding with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by-loan information with respect to each Reimbursement Amount ~~distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof~~ remitted to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each such Reimbursement Amount with respect to each Mortgage Loan. (iie) ~~By way of illustration~~The Servicer shall indemnify the Trustee, ~~and not by way of limiting~~ the ~~generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor~~ Master Servicer, the Securities Administrator, the Trust Fund, the Depositor and ~~the Successor Master~~ any successor Servicer ~~directly funds Advances~~ for any claim, loss, liability or ~~Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to~~ damage resulting from any claim by the related Advancing ~~Person~~ Person, except to the extent that such claim, loss, liability or ~~Advance Facility~~ damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the Trustee, ~~then all payments and recoveries received from~~ the ~~related Mortgagor or received in~~ Securities Administrator, the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, ~~have been reimbursed in full, at which point~~ the ~~Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To~~ Depositor or the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master successor Servicer~~, on the other hand, as described in clause (i)(B) above~~. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22,~~ 3.20 including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Depositor, the Trustee, the ~~Certificate Insurer~~Securities Administrator, ~~Company~~ the Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in ~~Section 11.01 of or elsewhere in~~ this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (ig) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Servicer to the Trustee, the Master Servicer ~~or its successor or assign) to~~ and the ~~Trustee~~ Securities Administrator terminating the Advance Facility Notice (the "Notice of Facility Termination"), the ~~Master Servicer or its Successor Master~~ Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the ~~Custodial~~ Protected Account pursuant to ~~Section 3.10~~the applicable Sections of this Agreement. (jh) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section ~~3.22~~ 3.20 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities I Trust 2005-Cl1)

Advance Facility. ~~(a)~~ The ~~Master Servicer~~ Servicer, with the consent of the NIMS Insurer, is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party (other than the NIMS Insurer consent) shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify the NIMS Insurer and each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders~~. (b)~~ . If the ~~Master Servicer enters~~ terms of a facility proposed to be entered into with an ~~Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related~~ Advancing Person by the Trust Fund would not materially and adversely affect the interests of any Certificateholder, then the NIMS Insurer shall ~~deliver~~ not withhold its consent to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent Trust Fund’s entering such ~~type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates~~facility. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d“FIFO”) basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, the NIMS Insurer, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee, the NIMS Insurer or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, but with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on~~ NIMS Insurer, provided such ~~Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in~~ amendment complies with Section 11.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2007-Wmc1)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement or the Insurer, which provides that the Servicer may pledge or sell its rights (the "Advance Reimbursement Rights") ~~the Master Servicer's rights under this Agreement~~ to ~~be reimbursed for~~ receive reimbursement of any ~~Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be~~ advances made by the ~~Master~~ Servicer in respect of Advances pursuant to this Agreement~~. No consent~~ , Servicing Advances pursuant to this Agreement, or amounts in respect of taxes and premiums advanced pursuant to Section 3.08(c) ("Tax/Premium Amounts") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the ~~Depositor~~funding of Advances, ~~the Trustee~~Servicing Advances or Tax/Premium Amounts, ~~the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility~~as applicable. Notwithstanding the existence of any Advance ~~Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf~~Facility, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances, Servicing Advances and ~~Servicing Advances~~ Tax/Premium Amounts pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances~~ Advances, including Nonrecoverable Advances related thereto ("Monthly Advance Reimbursement Amounts"), Servicing Advances, including Nonrecoverable Advances related thereto ("Servicing Advance Reimbursement Amounts") and/or ~~Servicing Advances including Nonrecoverable Advances~~ Tax/Premium Amounts ("~~Servicing Advance~~ Tax/Premium Reimbursement Amounts" ~~and~~ and, together with Monthly Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, "Advance Reimbursement Amounts") (in each case to the extent that such type of Advance Reimbursement Amount is included in the Advance Facility), as applicable, ~~pursuant to this Agreement,~~ then the ~~Master~~ Servicer shall identify such Advance Reimbursement Amounts ~~consistent~~ as received, consistently with the reimbursement rights set forth in Section ~~3.10(a)(ii)~~ 3.10, and ~~(vii) and~~ shall remit such Advance Reimbursement Amounts ~~in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account or direct the Trustee, as applicable, and the Servicer and the Trustee, if so ~~directed in writing the Trustee~~ directed, is hereby authorized to and shall pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement Amounts identified pursuant Pooling and Servicing Agreement to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have ~~any duty or liability~~ no obligation with respect to the calculation or payment of any Advance Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event thatAmount nor, as a result of the ~~FIFO allocation made pursuant to this Section 3.22(e), some or all~~ existence of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall ~~require Residential Funding~~ the Trustee have any obligation to ~~provide to the related Advancing Person~~ track, monitor or ~~Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to~~ administer such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Residential Asset Mortgage Products Inc)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information~~. (d)~~ . An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon ~~the direction of~~ and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor3.29, and ~~Liquidation Proceeds or Insurance Proceeds, if any,~~ such other documents in connection with ~~respect~~ such Advance Facilities as may be reasonably requested from time to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of time by any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Backed Cert Ser 2003 Ffh1)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty"), without the consent of any party to this Agreement, which provides that the Servicer may pledge or sell its rights to receive reimbursement of Advances, advances of taxes pursuant to Section 3.01(b) and advances of insurance pursuant to Section 3.12 (collectively, "Facility Advances") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of ~~the Depositor~~Facility Advances, ~~the Trustee, the Certificateholders~~ including facilities providing that such Advance Facility Counterparty may make all or ~~any other party shall be required before the Master Servicer may enter into an Advance Facility~~a portion of Facility Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Facility Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Facility Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If the ~~Master~~ Servicer enters into an Advance Facility, the Servicer shall promptly give written notice to the Trustee, which shall include the identity of the Advance Facility Counterparty, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Facility Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.10 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated in writing to the Trustee by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw from the Custodial Account, and ~~if so directed in writing~~ the ~~Trustee is hereby authorized to and~~ Servicer shall pay to the Advance Facility ~~Trustee~~ Counterparty or the Advance Facility Trustee, the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. ~~An Advancing Person whose obligations hereunder are limited~~ The Trustee shall have no obligation with respect to the ~~funding~~ calculation or payment of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any Advance Reimbursement ~~Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution~~ Amount ~~or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a)~~nor, ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee~~ as a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction result of the ~~Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination~~ existence of any Advance Facility ~~pursuant~~ shall the Trustee have any obligation to ~~this Section 3.22(b). (c)~~ track, monitor or administer such Advance Facility. The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Facility Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Facility Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable for any errors~~ included in ~~such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ distributions to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory~~ Certificateholders. An Advance Facility Counterparty whose obligations are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ making of ~~any Advancing Person or Advance~~ Facility ~~Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Advances will not be deemed to be ~~made subject to Advance Facilities pursuant to~~ a Subservicer under this ~~Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances~~ Agreement or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to ~~apply all amounts available in accordance with this Section 3.22(e) to~~ meet the ~~reimbursement of Advances and Servicing Advances in the manner provided~~ criteria for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, qualification as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in Subservicer under this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Gmacm Mortgage Loan Trust 2005-Ar6)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x Investors’ Service Inc. that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Trust Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (ed) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Securitization Servicing Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2003 Ff3)

Advance Facility. (a) ~~The Master Servicer~~ Wilshire is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) ~~the Master Servicer sells,~~ Wilshire assigns or pledges to another Person (an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by ~~the Master Servicer~~ Wilshire pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before ~~the Master Servicer~~ Wilshire may enter into an Advance Facility; PROVIDED, HOWEVER, that the consent of the Trustee (which consent shall not be unreasonably withheld) shall be required before Wilshire may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, ~~the Master Servicer~~ Wilshire shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If ~~the Master Servicer~~ Wilshire enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then Wilshire may elect by providing written notice to the Trustee not to be permitted to reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.08 of this Agreement, but following any such election Wilshire shall be required to include amounts collected that would otherwise be retained by Wilshire to reimburse it for previously unreimbursed Advances ("Advance Reimbursement Amounts") and/or previously unreimbursed Servicing ~~Advances including Nonrecoverable~~ Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementRemittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. If making the election set forth herein, Wilshire shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If ~~the Master Servicer~~ Wilshire enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), ~~the Master Servicer~~ Wilshire and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an "Advance Facility ~~Trustee~~ Trustee") designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of ~~the Master Servicer~~ Wilshire and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; PROVIDED, HOWEVER, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.21 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which ~~the Master Servicer~~ Wilshire would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.08(ii), (iii) and (~~vii~~iv) hereof, assuming ~~the Master Servicer or the Advancing Person~~ Wilshire had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer's report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from Wilshire to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.08(viii). ~~The Master Servicer~~ Wilshire shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by ~~the Master Servicer~~ Wilshire and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a Subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to whichWilshire has made the election set forth in Section 3.21(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, ~~first~~ first-out" ("FIFO") basis~~, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee~~ . Such documentation shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall also require ~~Residential Funding~~ Wilshire to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by- loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . Wilshire shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master Servicer~~ Wilshire to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (gf) If Wilshire enters into an Advance Facility, Wilshire shall indemnify the Trustee and the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the successor Servicer or the Trustee, or failure by the successor Servicer or the Trustee to remit funds as required by Section 3.21(b). Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer~~Seller and Wilshire, ~~Company and the Master Servicer~~ without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), Certificateholder notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Home Eq Mort PSS THR CRT Ser 2003-Ffa)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, ~~then~~ then, the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation or payment of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Equifirst Mortgage Loan Trust 2004-3 Asset-Backed Certificates, Series 2004-3)

Advance Facility. (a) ~~The Master Servicer~~ Wilshire is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) ~~the Master Servicer sells,~~ Wilshire assigns or pledges to another Person (an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by ~~the Master Servicer~~ Wilshire pursuant to this Agreement. No consent of the ~~Depositor, the~~ Trustee, ~~the~~ Certificateholders or any other party ~~shall be~~ is required before ~~the Master Servicer~~ Wilshire may enter into an Advance Facility; provided, however, that the consent of the Trustee (which consent shall not be unreasonably withheld) shall be required before Wilshire may cause to be outstanding at one time more than one Advance Facility with respect to Advances or more than one Advance Facility with respect to Servicing Advances. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, ~~the Master Servicer~~ Wilshire shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be relieved of such obligations by virtue of such Advance Facility. If ~~the Master Servicer~~ Wilshire enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances ~~including Nonrecoverable~~ or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then Wilshire may elect by providing written notice to the Trustee not to be permitted to reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.08 of this Agreement, but following any such election Wilshire shall be required to include amounts collected that would otherwise be retained by Wilshire to reimburse it for previously unreimbursed Advances ("Advance Reimbursement Amounts") and/or previously unreimbursed Servicing ~~Advances including Nonrecoverable~~ Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable,~~ ) in the remittance to the Trustee made pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant Agreement to the ~~terms~~ extent of amounts on deposit in the ~~Advance Facility,~~ Collection Account on the ~~Master~~ Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementCash Remittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in ~~the Available Distribution Amount~~ Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Wilshire if making the election set forth herein, shall report to the Trustee the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively. (b) If ~~the Master Servicer~~ Wilshire enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), ~~the Master Servicer~~ Wilshire and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to a trustee or custodian (an "Advance Facility ~~Trustee~~ Trustee") designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of ~~the Master Servicer~~ Wilshire and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide~~ ; provided, however, that the ~~Certificate Insurer, if any, with notice~~ provisions of ~~any termination of any Advance Facility pursuant to~~ this Section ~~3.22(b~~3.21 shall cease to be applicable when all Advances and Servicing Advances funded by an Advancing Person, and when all Advances and Servicing Advances (the rights to be reimbursed for which have been assigned or pledged to an Advancing Person), have been repaid to the related Advancing Person in full. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which ~~the Master Servicer~~ Wilshire would be permitted to reimburse itself in accordance with Section ~~3.10(a)(ii~~3.08(ii), (iii) and (~~vii~~iv) hereof, assuming ~~the Master Servicer or the Advancing Person~~ Wilshire had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to ~~this Agreement~~the provisions of Section 4.01. ~~Neither the Company nor the~~ The Trustee shall not have any duty or liability with respect to the calculation of any Reimbursement ~~Amount, nor~~ Amount and shall ~~the Company or the Trustee have any responsibility~~ be entitled to ~~track or monitor the administration of~~ rely without independent investigation on the Advance Facility ~~or have any responsibility to track, monitor or verify~~ Notice and on the ~~payment~~ Servicer's report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from Wilshire to the ~~related Advancing Person or Advance Facility Trustee~~Trustee pursuant to Section 3.08(viii). ~~The Master Servicer~~ Wilshire shall maintain and provide to any ~~Successor Master~~ successor Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, ~~sold,~~ pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by ~~the Master Servicer~~ Wilshire and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (d) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a Subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this~~ Section ~~3.22~~3.02 hereof. (e) With respect to any Advance Facility pursuant to which Wilshire has made the election set forth in Section 3.21(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, ~~first~~ first-out" ("FIFO") basis~~, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee~~ . Such documentation shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall also require ~~Residential Funding~~ Wilshire to provide to the related Advancing Person or Advance Facility Trustee ~~loan by~~ loan-by- loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . Wilshire shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master Servicer~~ Wilshire to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (gf) If Wilshire enters into an Advance Facility, Wilshire shall indemnify the Trustee and the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the successor Servicer or the Trustee, or failure by the successor Servicer or the Trustee to remit funds as required by Section 3.21(b). Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Seller and ~~the Master Servicer~~ Wilshire without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), Certificateholder notwithstanding anything to the contrary in Section ~~11.01~~ 10.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2004-FFB)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.Advancing

Appears in 1 contract

Samples: Pooling and Servicing Agreement (RAMP Series 2006-Rz2 Trust)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d"FIFO") basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advance financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ff4)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.21 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section ~~3.22(b~~3.21(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section ~~3.22(a~~3.21(a), the Master Servicer and the related Advancing Person shall deliver to ~~the Certificate Insurer and~~ the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee)~~. The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee; provided, however, the Trustee shall maintain records with respect to the payment of such Reimbursement Amounts as it does with respect to other distributions made pursuant to this Agreement. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a ~~loan-~~loan- by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such ~~acknowledgments, certificates and other documents reasonably satisfactory to the Trustee~~ acknowledgments provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22~~3.21. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section ~~3.22(e~~3.21(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section ~~3.22(e~~3.21(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~master servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.the

Appears in 1 contract

Samples: Pooling and Servicing Agreement (RAMP Series 2004-Sl3 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in ~~writing~~ writing, the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b)~~. (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the ~~Company~~ Depositor nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor master servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor master servicer shall be entitled to rely on any such information provided by the Master Servicer and the ~~Successor Master Servicer~~ successor master servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents reasonably satisfactory to the Trustee provided by the Master Servicer and reasonable satisfactory to the Trustee recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22~~. (e) Reimbursement Amounts collected~~ , and such other documents in connection with ~~respect~~ such Advance Facility as may be reasonably requested from time to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the time by any Advancing Person or Advance Facility Trustee ~~shall be required to apply all amounts available in accordance with this Section 3.22(e)~~ and reasonably satisfactory to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (RASC Series 2004-Ks11 Trust)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x Investors’ Service Inc. that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or distributed to Certificateholders~~. (b)~~ . If the ~~Master~~ Servicer enters into an Advance ~~Facility and makes the election set forth in Section 3.22(a)~~Facility, the ~~Master~~ Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice ~~and payment instruction~~ of the existence of such Advance Facility (an "“Advance Facility Notice"”), ~~providing~~ stating the ~~Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type~~ identity of ~~Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to~~ the Advancing Person ~~or to an~~ and any related Advance Facility ~~Trustee designated in the Advance Facility Notice~~Trustee. An Advance Facility Notice may only be terminated by the joint written direction of the ~~Master~~ Servicer and the related Advancing Person ~~(and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this~~ as described in Section ~~3.22(b)~~3.21(h) below. (cb) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor Servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master~~ successor Servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master~~ successor Servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by the Master Servicer recognizing the interests~~ funding of ~~any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause~~ Monthly Advances and/or Servicing Advances will not be deemed to be ~~made subject~~ a subservicer under this Agreement nor be required to ~~Advance Facilities pursuant to~~ meet the criteria for qualification of a subservicer set forth in this ~~Section 3.22~~Agreement. (ed) Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The ~~documentation establishing any Advance Facility~~ Servicer shall ~~require Residential Funding to~~ provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor Servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (hg) Any rights of set-off that the Trust Fund, the Trustee, the ~~Company~~Depositor, any ~~Successor Master~~ successor Servicer or any other Person might otherwise have against ~~the Master~~ any Servicer under this Agreement shall not attach to any rights to be reimbursed for Monthly Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (ih) At any time when an Advancing Person shall have ceased funding Monthly Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Monthly Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the ~~Master~~ related Servicer ~~or its successor or assign)~~ to the Trustee terminating the Advance Facility Notice (the "“Notice of Facility Termination"”), the ~~Master Servicer or its Successor Master~~ Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to ~~Section 3.10~~the applicable Sections of this Agreement. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Securitization Subservicing Agreement (Finance America Mortgage Loan Trust 2004-1)

Advance Facility. (a) Each of the Administrator and the Indenture Trustee is authorized to execute such documents and enter into such agreements as shall be necessary or appropriate in order to effectuate the purposes of the Initial Advance Facility. Until the Initial Advance Facility has been terminated, no amendment to this Agreement relating to the reimbursement of Advances shall be made without the prior written consent of the Initial Advance Facility Counterparty. (b) The ~~Master~~ Servicer is hereby ~~authorized~~ authorized, following the termination of the Initial Advance Facility, to enter into ~~a financing or other~~ any facility with any Person (any such ~~arrangement~~Person, an "“Advance ~~Facility"~~Facility Counterparty”) under which ~~(1)~~ the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may ~~enter into an Advance Facility. Notwithstanding the existence~~ pledge or sell its rights to receive reimbursement of ~~any Advance Facility under which an Advancing Person agrees to fund~~ Advances ~~and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated~~ pursuant to this Agreement ~~to make Advances and Servicing Advances~~ (“Advance Reimbursement Rights”) pursuant to ~~and as required by this Agreement~~credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the Advances (any such facility, an “Advance Facility”), although no Advance Facility shall reduce or otherwise affect the Servicer’s obligations to fund such Advances. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of an Advance Facility, to the extent that an Advance Facility Counterparty makes all or a portion of any Delinquency Advance and the Advance Facility Counterparty and the Servicer provide the Administrator with notice acknowledged by the Servicer that such Advance Facility Counterparty is entitled to reimbursement, such Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided. Such notice from the Advance Facility Counterparty, if so required, and the Servicer must specify the amount of the reimbursement and must specify which Section of this Agreement permits the Delinquency Advance to be reimbursed. The Administrator shall be entitled to rely without independent investigation on the Advance Facility Counterparty’s statement with respect to the amount of any reimbursement pursuant to this Section 3.20 and with respect to the Advance Facility Counterparty’s statement with respect to the Section of this Agreement that permits the Delinquency Advance to be reimbursed. An Advance Facility Counterparty whose obligations are limited to the making of Advances will not be deemed to be a subservicer under this Agreement. (c) If so required pursuant to the terms of an Advance Facility, the ~~Master~~ Servicer ~~may direct, and if so directed in writing the Trustee~~ is hereby authorized to and shall pay to the Advance Facility ~~Trustee~~ Counterparty, or cause the ~~Reimbursement Amounts identified~~ payment to the Advance Facility Counterparty of, (i) reimbursements for Advances; and (ii) all or such portion of the Servicing Fee as may be so specified in the Advance Facility, that would otherwise be payable to the Servicer pursuant to this Agreement, it being understood that neither the ~~preceding sentence. An Advancing Person whose obligations hereunder are limited~~ Trust nor any party hereto shall have a right or claim (including without limitation any right of offset) to the ~~funding~~ portion of the Servicing Fee or the Servicer’s right to reimbursement of Advances ~~and/or~~ so assigned, provided that any successor Servicer shall have no obligation to pay any portion of the Servicing Fee or its right to reimbursement of Advances ~~shall not be required~~ to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall any such Advance ~~Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders~~Facility. (bd) ~~If the Master Servicer enters into~~ Whether or not an Advance Facility ~~and makes the election set forth~~ is in ~~Section 3.22(a)~~place, ~~the Master Servicer and the related Advancing Person shall deliver~~ reimbursement amounts allocated to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing reimburse Advances made with respect to any particular Mortgage Loan shall be allocated to the ~~Mortgage Loans for which~~ reimbursement of the ~~Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had~~ unreimbursed Advances made ~~the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except~~ with respect to that Mortgage Loan on a “first-in, first out” (“FIFO”) basis, such that the reimbursement ~~of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person~~ amounts shall be ~~entitled~~ applied to ~~reimbursement from funds held~~ reimburse the Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the ~~Collection Account~~ Advance for ~~future distribution to Certificateholders pursuant to this Agreement~~that Mortgage Loan that was disbursed latest in time last. ~~Neither the Company nor the Trustee shall have any duty or liability~~ Liquidation Proceeds with respect to ~~the calculation of any Reimbursement Amount, nor~~ a Mortgage Loan shall ~~the Company or the Trustee have any responsibility~~ be applied to ~~track or monitor the administration of the Advance Facility or have any responsibility~~ reimburse Servicing Advances outstanding with respect to ~~track, monitor or verify the payment of Reimbursement Amounts~~ that Mortgage Loan before being applied to reimburse Delinquency Advances outstanding with respect to that Mortgage Loan. The Servicer shall provide to the related ~~Advancing Person or~~ Advance Facility ~~Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a~~ Counterparty loan-by-loan ~~basis as~~ information with respect to ~~amounts advanced by~~each reimbursement amount remitted to such Advance Facility Counterparty, ~~sold, pledged or assigned to, and reimbursed~~ to ~~any Advancing Person. The Successor Master Servicer shall be entitled~~ enable the Advance Facility Counterparty to ~~rely on any~~ make the FIFO allocation of each such ~~information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information~~reimbursement amount with respect to each Mortgage Loan. (de) Upon ~~the direction of and at the expense~~ request of the ~~Master Servicer~~Servicer and provision by the Servicer of all necessary forms, the ~~Trustee~~ Administrator agrees to execute such reasonable acknowledgments, ~~certificates~~ certificates, and other reasonable documents ~~reasonably satisfactory to the Trustee provided by the Master Servicer~~ recognizing the interests of any ~~Advancing Person or~~ Advance Facility ~~Trustee~~ Counterparty in such Advance Reimbursement ~~Amounts~~ Rights and Servicing Fees as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor3.20, and ~~Liquidation Proceeds or Insurance Proceeds, if any,~~ such other documents in connection with ~~respect~~ such Advance Facilities as may be reasonably requested from time to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made time by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality Counterparty. The implementation of the ~~foregoing, if~~ arrangement described in this Section shall not require the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form consent of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this AgreementNoteholders, the ~~reimbursement paid in this manner will be made pro rata to~~ Administrator or the ~~Advancing Person or Advance Facility~~ Indenture Trustee~~, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above~~. (f) The ~~Master~~ Servicer shall ~~remain entitled~~ indemnify the Indenture Trustee, the Administrator, the Master Servicer, the Trust and each Noteholder for any and all claims, losses, liabilities, damages, costs and expenses resulting from any claim by the Advance Facility Counterparty, except (with respect to ~~be reimbursed for all Advances and Servicing Advances funded by~~ the Indenture Trustee, the Administrator, the Master Servicer and any successor Servicer) to the extent that such claim, loss, liability, damages or expense results from or arises out of the ~~related rights to be reimbursed therefor have not been sold~~negligence, ~~assigned~~ recklessness or ~~pledged to an Advancing Person~~willful misconduct of the Indenture Trustee, the Administrator, the Master Servicer or successor Servicer, as applicable. (g) Any amendment to this Section ~~3.22~~ 3.20 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this ~~Section 3.22~~Section, including amendments to add provisions relating to a successor ~~Master~~ Servicer, may be entered into by the ~~Trustee~~Issuer, the ~~Certificate Insurer~~Seller, ~~Company~~ the Depositor, the Servicer, the Master Servicer, the Administrator, the Custodian, the Credit Risk Manager and the ~~Master Servicer~~ Indenture Trustee without the consent of any ~~Certificateholder~~Noteholder, provided that such amendment is otherwise effected in compliance with ~~written confirmation from~~ the provisions of Section 10.1. All reasonable costs and expenses (including attorneys’ fees) incurred by each ~~Rating Agency~~ party hereto or incurred by (or that would otherwise be incurred by) the ~~amendment will not result in~~ Trust shall be borne solely by the ~~reduction of the ratings on~~ Servicer. The parties hereto acknowledge and agree that (i) any ~~class of the Certificates below the lesser of the then current or original ratings on such Certificates, and~~ Advances financed by and/or pledged to an ~~opinion of counsel as required by Section 11.01(c), notwithstanding anything~~ Advance Facility Counterparty under any Advance Facility are obligations owed to the ~~contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that~~ Servicer payable only from the ~~Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer~~ cash flows and proceeds received under this Agreement ~~shall not attach~~ for reimbursement of Advances to the extent provided herein, and none of the Master Servicer, the Administrator or the Indenture Trustee is, as a result of the existence of any ~~rights~~ Advance Facility, obligated or liable to repay any Advances financed by the Advance Facility Counterparty; (ii) the Servicer will be ~~reimbursed~~ responsible for remitting to the Advance Facility Counterparty the applicable amounts collected by it as reimbursement for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as funded by the ~~case may be) and the Advancing Person or related~~ Advance Facility Counterparty, subject to the provisions of this Agreement; and (iii) none of the Master Servicer, the Administrator or the Indenture Trustee shall have ~~received Reimbursement Amounts sufficient in~~ any responsibility to track or monitor the ~~aggregate to reimburse all Advances and/or Servicing Advances (as~~ administration of the ~~case may be)~~ financing arrangement between the ~~right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person~~ Servicer and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing PersonCounterparty.

Appears in 1 contract

Samples: Transfer and Servicing Agreement (Aegis Asset Backed Securities Trust 2005-3)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another 103 Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing ~~Person in an Advance Facility Notice described below in Section 3.22(b)~~Person. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may direct, and if so directed ~~in writing~~ the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Depositor shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. . Any successor Servicer shall reimburse the predecessor Servicer and itself for outstanding Advances and Servicing Advances, respectively, with respect to each Mortgage Loan on a first in, first out (d"FIFO") basis; provided that the successor Servicer has received prior written notice from the predecessor Servicer or the 104 Advancing Person of reimbursement amounts owed to the predecessor Servicer. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan. An Advancing Person who receives an assignment or pledge of the rights to be reimbursed for Advances and/or Servicing Advances, and/or whose obligations hereunder are limited to the funding or purchase of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a subservicer set forth in this Agreement. Upon the direction of and at the expense of the ~~Master~~ Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents ~~reasonably satisfactory to the Trustee~~ provided by the ~~Master~~ Servicer recognizing the interests of any ~~Advancing Person or~~ Advance Facility Trustee in such Reimbursement Amounts as the ~~Master~~ Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee3.29. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund for any loss, liability or damage resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances ~~(as the case may be) the right to reimbursement for which were assigned~~ only to the ~~Advancing Person~~extent provided herein, ~~then upon~~ and the ~~delivery of a written notice signed~~ Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person and ~~the Master Servicer or its successor or assign~~(b) to the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.. 105

Appears in 1 contract

Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2004-Ff5)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person's successors and assigns, an "Advancing Person") the ~~Master~~ Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the 100 Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, ~~then~~ then, the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section ~~3.10(a)(ii~~3.11(a)(ii), (iii), (vi) and (vii) and remit such Reimbursement Amounts in accordance with ~~this~~ Section ~~3.22~~ 3.10(b) or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available ~~Distribution Amount~~ Funds or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in ~~Section 3.10(c) of~~ this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Depositor or the Trustee shall have any duty or liability with respect to the calculation or payment of any Reimbursement Amount, nor shall the ~~Company~~ Depositor or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor Master Servicer~~ successor servicer and (upon request) the Trustee a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information~~. (d) Upon the direction of and at the expense~~ . An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding or purchase of Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such~~ this Agreement. Reimbursement Amounts ~~as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ distributed with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "~~first-~~first in, first out" ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed ~~to such Advancing Person or Advance Facility Trustee on each date of remittance thereof~~ to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The ~~Master~~ Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person~~. (g)~~ . The Servicer shall indemnify the Depositor, the Trustee, any successor servicer and the Trust Fund resulting from any claim by the related Advancing Person arising out of the Advance Facility, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct or breach of its duties hereunder on the part of the Depositor, the Trustee or any successor servicer. Any amendment to this Section ~~3.22~~ 3.29 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.29, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Trustee, the ~~Certificate Insurer, Company~~ Depositor and the ~~Master~~ Servicer without the consent of any Certificateholder, provided such amendment complies with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of ~~or elsewhere in this Agreement. (h) Any rights~~ each party hereto of ~~set-off that~~ any such amendment shall be borne solely by the ~~Trust Fund~~Servicer. Prior to entering into an Advance Facility, the ~~Trustee,~~ Servicer shall notify the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person ~~shall have ceased funding~~ in writing that: (a) the Advances and/or Servicing Advances ~~(as the case may be) and~~ purchased, financed by and/or pledged to the Advancing Person ~~or related Advance Facility Trustee shall have~~ are obligations owed to the Servicer on a non-recourse basis payable only from the cash flows and proceeds received ~~Reimbursement Amounts sufficient in the aggregate to reimburse all~~ under this Agreement for reimbursement of Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust are not otherwise obligated or liable to repay any Advances and/or Servicing Advances financed by the Advancing Person; (~~as the case may be~~b) the ~~right~~ Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for ~~which were assigned to~~ Advances and/or Servicing Advances funded by the Advancing Person, ~~then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign)~~ subject to the restrictions and priorities created in this Agreement; and (c) the Trustee ~~terminating~~ shall not have any responsibility to track or monitor the administration of the Advance Facility ~~Notice (~~between the ~~"Notice of Facility Termination"),~~ Servicer and the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions, Inc. Mortgage Pass-Through Certificates, Series 2004-Wmc3)

Advance Facility. ~~(a)~~ The ~~Master~~ Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer sells, assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the ~~Master~~ Servicer may enter into an Advance Facility. The Servicer shall notify each other party to this Agreement prior to or promptly after entering into or terminating any Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("“Advance Reimbursement Amounts"”) and/or Servicing Advances including Nonrecoverable Advances ("“Servicing Advance Reimbursement Amounts" ” and together with Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the ~~Master~~ Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a3.11(a)(ii), ~~the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction~~ (~~an "Advance Facility Notice"~~iii), ~~providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts~~ (~~each to the extent such type of Reimbursement Amount is included within the Advance Facility~~vi) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.and

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Equifirst Mortgage Loan Trust 2005-1)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Company, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the ~~Certificate Insurer and the~~ Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee~~). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b~~). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or and the Company shall not have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, ~~certificates~~ certificates, and other documents provided by the Master Servicer and reasonably satisfactory to the Trustee ~~provided by the Master Servicer~~ recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22, and such other documents in connection with such Advance Facility as may be reasonably requested from time to time by any Advancing Person or Advance Facility Trustee and reasonably satisfactory to the Trustee. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by ~~the Master~~ xxx Xxxxer Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the ~~Certificate Insurer,~~ Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), ) notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (RFMSI Series 2007-S6 Trust)

Advance Facility. (a) The Master Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "Advance Facility") under which (1) the Master Servicer sells, assigns or pledges to another Person (an "Advancing Person") the Master Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer pursuant to this Agreement. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Master Servicer may enter into an Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Advances and/or Servicing Advances on the Master Servicer's behalf, the Master Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement. If the Master Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances including Nonrecoverable Advances ("Advance Reimbursement Amounts") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii) and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the Master Servicer would be permitted to reimburse itself in accordance with Section 3.10(a)(ii) and (vii) hereof, assuming the Master Servicer or the Advancing Person had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement, no Person shall be entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer shall not be liable for any errors in such information. (d) Upon the direction of and at the expense of the Master Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master Servicer recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected with respect to each Mortgage Loan shall be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, subject to the qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each date of remittance thereof to such Advancing Person or Advance Facility Trustee, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan. (ii) By way of illustration, and not by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be ~~reimbursed therefor~~ reimxxxxxx xxerefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (RALI Series 2007-Qa3 Trust)

Advance Facility. (a) ~~The Master~~ With the prior written consent of the NIMS Insurer, the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an "“Advance Facility"”) under which (1) the ~~Master~~ Servicer ~~sells,~~ assigns or pledges to another Person (together with such Person’s successors and assigns, an "“Advancing Person"”) the ~~Master~~ Servicer's ’s rights under this Agreement to be reimbursed for any Monthly Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Monthly Advances and/or Servicing Advances required to be made by the ~~Master~~ Servicer pursuant to this Agreement. No consent of the ~~Depositor~~Seller, the Master Servicer, the Trustee, the Certificateholders or any other party ~~shall be~~ is required before the ~~Master~~ Servicer may enter into an Advance Facility; provided, however, at least 30 days prior to entering such Advance Facility, the Servicer must provide written notification to Xxxxx’x that it intends to enter into such Advance Facility. Notwithstanding the existence of any Advance Facility under which an Advancing Person agrees to fund Monthly Advances and/or Servicing Advances on the ~~Master~~ Servicer's ’s behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make Monthly Advances and Servicing Advances pursuant to and as required by this Agreement. If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Monthly Advances ~~including Nonrecoverable~~ and/or Servicing Advances, as applicable, pursuant to this Agreement, then the Servicer shall not be permitted to reimburse itself for Monthly Advances and/or Servicing Advances, but instead the Servicer shall be required to remit amounts collected that would otherwise be retained by the Servicer to reimburse it for previously unreimbursed Monthly Advances ("“Monthly Advance Reimbursement Amounts"”) and/or previously unreimbursed Servicing Advances ~~including Nonrecoverable Advances~~ ("“Servicing Advance Reimbursement Amounts" ” and together with Monthly Advance Reimbursement Amounts, "“Reimbursement Amounts"”) (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility~~), as applicable, pursuant to this Agreement, then the Master Servicer shall identify such Reimbursement Amounts consistent with the reimbursement rights set forth in Section 3.10(a)(ii~~) ~~and (vii) and remit such Reimbursement Amounts in accordance with this Section 3.22 or otherwise~~ in accordance with the documentation establishing the Advance Facility to such Advancing Person or to a trustee, agent or custodian (an "“Advance Facility Trustee"”) designated by such Advancing Person in an Advance Facility Notice described below in Section 3.22(b). Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the Master Servicer may direct, and if so directed in writing the Trustee is hereby authorized to and shall pay to the Advance Facility Trustee the Reimbursement Amounts identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this AgreementPerson. Notwithstanding anything to the contrary herein, in no event shall Monthly Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the “Available Distribution ~~Amount~~ Amount” or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) Reimbursement Amounts shall consist solely of amounts in respect of Monthly Advances and/or Servicing Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related Monthly Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing~~, except with respect to reimbursement of Nonrecoverable Advances as set forth in Section 3.10(c) of this Agreement~~, no Person shall be entitled to reimbursement from funds held in the ~~Collection~~ Custodial Account for future distribution to Certificateholders pursuant to this Agreement. ~~Neither~~ None of the ~~Company nor~~ Master Servicer, the Trustee or the NIMS Insurer shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the ~~Company~~ Master Servicer, the Trustee or the ~~Trustee~~ NIMS Insurer have any responsibility to track or monitor the administration of the Advance Facility or ~~have any responsibility to track, monitor or verify~~ the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The ~~Master~~ Servicer shall maintain and provide to any ~~Successor~~ successor servicer and (upon request) the NIMS Insurer and the Master Servicer a detailed accounting on a ~~loan-by-~~loan by loan basis as to amounts advanced by~~, sold~~, pledged or assigned to, and reimbursed to any Advancing Person. The ~~Successor Master Servicer~~ successor servicer shall be entitled to rely on any such information provided by the ~~Master Servicer~~ predecessor Servicer, and the ~~Successor Master Servicer~~ successor servicer shall not be liable for any errors in such information. (dc) ~~Upon the direction of and at the expense~~ An Advancing Person who receives an assignment or pledge of the ~~Master Servicer~~rights to be reimbursed for Monthly Advances and/or Servicing Advances, ~~the Trustee agrees to execute such acknowledgments, certificates and other documents reasonably satisfactory~~ and/or whose obligations hereunder are limited to the ~~Trustee provided by~~ funding of Monthly Advances and/or Servicing Advances shall not be required to meet the ~~Master Servicer recognizing the interests~~ criteria for qualification of ~~any Advancing Person or Advance Facility Trustee~~ a subservicer set forth in ~~such Reimbursement Amounts as the Master Servicer may cause to be made subject to Advance Facilities pursuant to~~ this ~~Section 3.22~~Agreement. (ed) The documentation establishing any Advance Facility shall require that Reimbursement Amounts ~~collected~~ distributed with respect to each Mortgage Loan ~~shall~~ be allocated to outstanding unreimbursed Monthly Advances or Servicing Advances (as the case may be) made with respect to that Mortgage Loan on a ~~"first-~~“first in, first out" ” ("FIFO") basis~~, subject to~~ . Such documentation shall also require the ~~qualifications set forth below: (i) Any successor Master~~ Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan information with respect to each Reimbursement Amount distributed to such Advancing Person or Advance Facility Trustee on each ~~date of remittance thereof to such Advancing Person or Advance Facility Trustee~~Distribution Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Mortgage Loan~~. (ii) By way of illustration, and not~~ . The Servicer shall remain entitled to be reimbursed by way of limiting the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Monthly Advances and Servicing Advances funded by the ~~Master~~ Servicer to the extent the related rights to be reimbursed therefor have not been ~~sold,~~ assigned or pledged to an Advancing Person. (ge) The Servicer who enters into an Advance Facility shall indemnify the NIMS Insurer, the Master Servicer, the Trustee, the Trust Fund and any successor resulting from any claim by the related Advancing Person, except to the extent that such claim, loss, liability or damage resulted from or arose out of negligence, recklessness or willful misconduct on the part of the NIMS Insurer, the Master Servicer, the Trustee or the successor servicer. (f) Any amendment to this Section ~~3.22~~ 3.21 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section ~~3.22~~3.21, including amendments to add provisions relating to a successor ~~Master Servicer~~servicer, may be entered into by the Seller, the Trustee, the ~~Certificate Insurer, Company~~ Master Servicer and the ~~Master~~ Servicer without the consent of any Certificateholder, but only with ~~written confirmation from each Rating Agency that~~ the ~~amendment will not result in the reduction~~ consent of the ~~ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c)~~NIMS Insurer, notwithstanding anything to the contrary in ~~Section 11.01 of~~ this Agreement or ~~elsewhere in this~~ the Trust Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery of any Advance Facility Notice, and until any such Advance Facility Notice has been terminated by a Notice of Facility Termination, this Section 3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person.

Appears in 1 contract

Samples: Securitization Servicing Agreement (Structured Asset Sec Corp Mort Pas THR Certs Series 2003 Bc3)

Advance Facility. (a) The ~~Master~~ Servicer is hereby authorized to enter into ~~a financing or other~~ any facility (~~any such arrangement,~~ an "Advance Facility") ~~under which (1) the Master Servicer sells, assigns or pledges to another~~ with any Person (any such Person, an "~~Advancing Person~~Advance Facility Counterparty") ), without the ~~Master Servicer's~~ consent of any party to this Agreement, which provides that the Servicer may pledge or sell its rights ~~under this Agreement~~ to ~~be reimbursed for any~~ receive reimbursement of Servicer Advances ~~or Servicing Advances and/or (2) an Advancing Person agrees to fund some or all Advances and/or Servicing Advances required to be made by the Master Servicer~~ pursuant to this ~~Agreement. No consent~~ Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for the funding of the ~~Depositor~~Servicer Advances, including facilities providing that such Advance Facility Counterparty may make all or a portion of the ~~Trustee, the Certificateholders or any other party shall be required before the Master~~ Servicer ~~may enter into an Advance Facility~~Advances. Notwithstanding the existence of any Advance Facility under which an ~~Advancing Person~~ Advance Facility Counterparty agrees to fund ~~Advances and/or Servicing~~ Servicer Advances on the ~~Master~~ Servicer's behalf, the ~~Master~~ Servicer shall remain obligated pursuant to this Agreement to make any Servicer Advances ~~and Servicing Advances pursuant to and~~ as required by this Agreement. , and shall not be relieved of such obligations by virtue of such Advance Facility. (b) If the ~~Master~~ Servicer enters into an Advance Facility, and for so long as an ~~Advancing Person~~ Advance Facility Counterparty remains entitled to receive reimbursement for any ~~Advances including Nonrecoverable~~ Servicer Advances ("Advance Reimbursement ~~Amounts~~Amount") and/or Servicing Advances including Nonrecoverable Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, "Reimbursement Amounts") (in each case to the extent such type of Reimbursement Amount is included in the Advance Facility)~~, as applicable, pursuant to this Agreement~~, then the ~~Master~~ Servicer shall identify such Advance Reimbursement ~~Amounts consistent~~ Amount as received, consistently with the reimbursement rights set forth in ~~Section 3.10(a)(ii)~~ Sections 3.03 of this Agreement, and ~~(vii) and~~ shall remit such Advance Reimbursement ~~Amounts in accordance with this Section 3.22 or otherwise~~ Amount in accordance with the documentation establishing the Advance Facility to such ~~Advancing Person~~ Advance Facility Counterparty or to a trustee, agent or custodian (an "Advance Facility Trustee") designated by such ~~Advancing Person in an~~ Advance Facility ~~Notice described below in Section 3.22(b)~~Counterparty. Notwithstanding the foregoing, if so required pursuant to the terms of the Advance Facility, the ~~Master~~ Servicer may ~~direct~~withdraw or direct the Indenture Trustee to withdraw, as applicable, from the Custodial Account, and the Servicer shall, and if so ~~directed in writing~~ directed, the Indenture Trustee is hereby authorized to and ~~shall~~ shall, pay to the Advance Facility Counterparty or the Advance Facility Trustee the Advance Reimbursement ~~Amounts~~ Amount identified pursuant to the preceding sentence. An Advancing Person whose obligations hereunder are limited to the funding of Advances and/or Servicing Advances shall not be required to meet the qualifications of a Master Servicer or a Subservicer pursuant to Section 3.02(a) or 6.02(c) hereof and shall not be deemed to be a Subservicer under this Agreement. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in the Available Distribution Amount or distributed to Certificateholders. (b) If the Master Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), the Master Servicer and the related Advancing Person shall deliver to the Certificate Insurer and the Trustee a written notice and payment instruction (an "Advance Facility Notice"), providing the Trustee with written payment instructions as to where to remit Advance Reimbursement Amounts and/or Servicing Advance Reimbursement Amounts (each to the extent such type of Reimbursement Amount is included within the Advance Facility) on subsequent Distribution Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person or to an Advance Facility Trustee designated in the Advance Facility Notice. An Advance Facility Notice may only be terminated by the joint written direction of the Master Servicer and the related Advancing Person (and any related Advance Facility Trustee). The Master Servicer shall provide the Certificate Insurer, if any, with notice of any termination of any Advance Facility pursuant to this Section 3.22(b). (c) The Advance Reimbursement ~~Amounts~~ Amount shall consist solely of amounts in respect of ~~Advances and/or Servicing~~ Servicer Advances made with respect to the Mortgage Loans for which the ~~Master~~ Servicer would be permitted to reimburse itself in accordance with ~~Section 3.10(a)(ii) and (vii) hereof~~this Agreement, assuming the ~~Master~~ Servicer ~~or the Advancing Person~~ had made the related ~~Advance(s) and/or Servicing Advance(s)~~Servicer Advances. ~~Notwithstanding~~ Any Advance Reimbursement Amount that the ~~foregoing~~Servicer, ~~except with respect to reimbursement of Nonrecoverable Advances~~ in its capacity as ~~set forth in Section 3.10(c) of this Agreement~~Servicer, ~~no Person shall be~~ is entitled to reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement. Neither the Company nor the Trustee shall have any duty or liability with respect to the calculation of any Reimbursement Amount, nor shall the Company or the Trustee have any responsibility to track or monitor the administration of the Advance Facility or have any responsibility to track, monitor or verify the payment of Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee. The Master Servicer shall maintain and provide to any Successor Master Servicer a detailed accounting on a loan-by-loan basis as to amounts advanced by, sold, pledged or assigned to, and reimbursed to any Advancing Person. The Successor Master Servicer shall be ~~entitled to rely on any such information provided by the Master Servicer and the Successor Master Servicer~~ paid shall not be ~~liable~~ included in distributions to Noteholders. An Advance Facility Counterparty whose obligations are limited to the making of Servicer Advances will not be deemed to be a Subservicer under this Agreement or be required to meet the criteria for ~~any errors in such information~~qualification as a Subservicer under this Agreement. (d) ~~Upon the direction of and at the expense of the Master Servicer, the Trustee agrees~~ Any Advance Reimbursement Amount allocated to ~~execute such acknowledgments, certificates and other documents reasonably satisfactory to the Trustee provided by the Master~~ reimburse Servicer ~~recognizing the interests of any Advancing Person or Advance Facility Trustee in such Reimbursement Amounts as the Master Servicer may cause to be~~ Advances made ~~subject to Advance Facilities pursuant to this Section 3.22. (e) Reimbursement Amounts collected~~ with respect to ~~each~~ any particular Mortgage Loan shall be allocated to ~~outstanding~~ the reimbursement of the unreimbursed Servicer Advances ~~or Servicing Advances (as the case may be)~~ made with respect to that Mortgage Loan on a "first-in, first out" ("FIFO") basis, ~~subject~~ such that the Advance Reimbursement Amount shall be applied to reimburse the Servicer Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Servicer Advance for that Mortgage Loan that was disbursed latest in time, last. The Servicer shall provide to the ~~qualifications set forth below: (i) Any successor Master Servicer to Residential Funding (a "Successor Master Servicer") and the Advancing Person~~ related Advance Facility Counterparty or Advance Facility Trustee shall be required to apply all amounts available in accordance with this Section 3.22(e) to the reimbursement of Advances and Servicing Advances in the manner provided for herein; provided, however, that after the succession of a Successor Master Servicer, (A) to the extent that any Advances or Servicing Advances with respect to any particular Mortgage Loan are reimbursed from payments or recoveries, if any, from the related Mortgagor, and Liquidation Proceeds or Insurance Proceeds, if any, with respect to that Mortgage Loan, reimbursement shall be made, first, to the Advancing Person or Advance Facility Trustee in respect of Advances and/or Servicing Advances related to that Mortgage Loan to the extent of the interest of the Advancing Person or Advance Facility Trustee in such Advances and/or Servicing Advances, second to the Master Servicer in respect of Advances and/or Servicing Advances related to that Mortgage Loan in excess of those in which the Advancing Person or Advance Facility Trustee Person has an interest, and third, to the Successor Master Servicer in respect of any other Advances and/or Servicing Advances related to that Mortgage Loan, from such sources as and when collected, and (B) reimbursements of Advances and Servicing Advances that are Nonrecoverable Advances shall be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and any such Successor Master Servicer, on the other hand, on the basis of the respective aggregate outstanding unreimbursed Advances and Servicing Advances that are Nonrecoverable Advances owed to the Advancing Person, Advance Facility Trustee or Master Servicer pursuant to this Agreement, on the one hand, and any such Successor Master Servicer, on the other hand, and without regard to the date on which any such Advances or Servicing Advances shall have been made. In the event that, as a result of the FIFO allocation made pursuant to this Section 3.22(e), some or all of a Reimbursement Amount paid to the Advancing Person or Advance Facility Trustee relates to Advances or Servicing Advances that were made by a Person other than Residential Funding or the Advancing Person or Advance Facility Trustee, then the Advancing Person or Advance Facility Trustee shall be required to remit any portion of such Reimbursement Amount to the Person entitled to such portion of such Reimbursement Amount. Without limiting the generality of the foregoing, Residential Funding shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Residential Funding to the extent the related Reimbursement Amount(s) have not been assigned or pledged to an Advancing Person or Advance Facility Trustee. The documentation establishing any Advance Facility shall require Residential Funding to provide to the related Advancing Person or Advance Facility Trustee loan by loan-by-loan information with respect to each Advance Reimbursement Amount ~~distributed~~ remitted to such ~~Advancing Person or~~ Advance Facility ~~Trustee on each date of remittance thereof to such Advancing Person~~ Counterparty or Advance Facility Trustee, to enable the ~~Advancing Person~~ Advance Facility Counterparty or Advance Facility Trustee to make the FIFO allocation of each such Advance Reimbursement Amount with respect to each Mortgage Loan. (iie) ~~By way~~ Upon request of ~~illustration~~the Servicer, the Indenture Trustee agrees to execute such acknowledgments, certificates, and ~~not by way of limiting~~ other documents recognizing the generality of the foregoing, if the Master Servicer resigns or is terminated at a time when the Master Servicer is a party to an Advance Facility, and is replaced by a Successor Master Servicer, and the Successor Master Servicer directly funds Advances or Servicing Advances with respect to a Mortgage Loan and does not assign or pledge the related Reimbursement Amounts to the related Advancing Person or Advance Facility Trustee, then all payments and recoveries received from the related Mortgagor or received in the form of Liquidation Proceeds with respect to such Mortgage Loan (including Insurance Proceeds collected in connection with a liquidation of such Mortgage Loan) will be allocated first to the Advancing Person or Advance Facility Trustee until the related Reimbursement Amounts attributable to such Mortgage Loan that are owed to the Master Servicer and the Advancing Person, which were made prior to any Advances or Servicing Advances made by the Successor Master Servicer, have been reimbursed in full, at which point the Successor Master Servicer shall be entitled to retain all related Reimbursement Amounts subsequently collected with respect to that Mortgage Loan pursuant to Section 3.10 of this Agreement. To the extent that the Advances or Servicing Advances are Nonrecoverable Advances to be reimbursed on an aggregate basis pursuant to Section 3.10 of this Agreement, the reimbursement paid in this manner will be made pro rata to the Advancing Person or Advance Facility Trustee, on the one hand, and the Successor Master Servicer, on the other hand, as described in clause (i)(B) above. (f) The Master Servicer shall remain entitled to be reimbursed for all Advances and Servicing Advances funded by the Master Servicer to the extent the related rights to be reimbursed therefor have not been sold, assigned or pledged to an Advancing Person. (g) Any amendment to this Section 3.22 or to any other provision of this Agreement that may be necessary or appropriate to effect the terms of an Advance Facility as described generally in this Section 3.22, including amendments to add provisions relating to a successor Master Servicer, may be entered into by the Trustee, the Certificate Insurer, Company and the Master Servicer without the consent of any Certificateholder, with written confirmation from each Rating Agency that the amendment will not result in the reduction of the ratings on any class of the Certificates below the lesser of the then current or original ratings on such Certificates, and an opinion of counsel as required by Section 11.01(c), notwithstanding anything to the contrary in Section 11.01 of or elsewhere in this Agreement. (h) Any rights of set-off that the Trust Fund, the Trustee, the Company, any Successor Master Servicer or any other Person might otherwise have against the Master Servicer under this Agreement shall not attach to any rights to be reimbursed for Advances or Servicing Advances that have been sold, transferred, pledged, conveyed or assigned to any Advancing Person. (i) At any time when an Advancing Person shall have ceased funding Advances and/or Servicing Advances (as the case may be) and the Advancing Person or related Advance Facility Trustee shall have received Reimbursement Amounts sufficient in the aggregate to reimburse all Advances and/or Servicing Advances (as the case may be) the right to reimbursement for which were assigned to the Advancing Person, then upon the delivery of a written notice signed by the Advancing Person and the Master Servicer or its successor or assign) to the Trustee terminating the Advance Facility Notice (the "Notice of Facility Termination"), the Master Servicer or its Successor Master Servicer shall again be entitled to withdraw and retain the related Reimbursement Amounts from the Custodial Account pursuant to Section 3.10. (j) After delivery interests of any Advance Facility ~~Notice, and until any~~ Counterparty in such Advance ~~Facility Notice has been terminated by a Notice of Facility Termination,~~ Reimbursement Rights as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section ~~3.22 may not be amended or otherwise modified without the prior written consent of the related Advancing Person~~3.16.

Appears in 1 contract

Samples: Servicing Agreement (Residential Asset Mort Prod Inc Gmacm Home Eq L N Tr 04 He2)

Common use of Advance Facility Clause in Contracts