Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement. (b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement. (c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. (d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan. (e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer. (f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information. (g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Chec Funding LLC), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-D), Pooling and Servicing Agreement (Chec Funding LLC)
Advance Facility. (a) The Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an “Advance Facility”) with any Person under which provides that such (1) the Servicer assigns or pledges to another Person (an “Advancing Person”) the Servicer's rights under this Agreement to be reimbursed for any Advances or Servicing Advances and/or (2) an Advancing Person agrees to fund (i) a portion of the purchase price of the servicing rights attributable to the Mortgage Loans or (ii) some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that Agreement. No consent of the Owner is required before the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters enter into an Advance Facility; provided, however, that the consent of the Owner 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 Servicer's behalf, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility remain obligated pursuant to this Section 8.29Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, upon reasonable request and shall not be relieved of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared such obligations by the Servicer, confirming its receipt of notice of the existence virtue of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds makes all or a portion of any Delinquency Advance or any Servicing Advance and provides the Owner with notice acknowledged by the Servicer provides the 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 extent provided in Section 8.29(c9.07(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, reimbursement and must specify which Section of this Agreement permits the remittance date, the written payment instructions for applicable Advance or Servicing Advance to be reimbursed. The Owner shall be entitled to rely without independent investigation on the Advancing Person, 's statement with respect to the amount of any reimbursement pursuant to this 9.07 and with respect to the Advancing Person's statement with respect to the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29reimbursed. An Advancing Person whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Servicer or any a Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of If the Depositor or Advancing Person and the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect Servicer submit to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of Owner the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements notice set forth in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
subsection (ca) If an Advance Facility is entered into, and if the Servicer so notifies the Trusteeabove, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating be permitted to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Collection Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as this Agreement prior to the case may be, had remittance to the Servicer itself funded such Delinquency Advance or Servicing AdvanceOwner.
(dc) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 3 contracts
Samples: Assignment, Assumption and Recognition Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd1), Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd3), Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-Sd2)
Advance Facility. (a) The Servicer and/or the Trustee on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees (1) under which the Servicer sells, assigns or pledges to fund some or all of the Delinquency Advancing Person the Servicer’s rights under this Agreement to be reimbursed for any P&I Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or (2) which provides that the Servicer Advancing Person may pledge or assign its rights to be reimbursed for Delinquency fund P&I Advances and/or Servicing Advances, directly or indirectly, Advances to an Advancing Personthe Trust Fund under this Agreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency P&I Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.293.26, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency P&I Advance or any Servicing Advance or is assigned the right to be reimbursed for any P&I Advance or Servicing Advance and provides the Trust Administrator with notice acknowledged by the Servicer provides the Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursementreimbursement directly from the Trust Administrator pursuant to the terms of the Advance Facility, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.26(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the TrusteeTrust Administrator, rather than the Servicer, and include the Servicer’s acknowledgment thereto or proof of an Event event of Default by the Servicer default under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Trustee Trust Administrator shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvancing Person’s Certificate notice provided pursuant to this Section 8.293.26. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency P&I Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Servicer or any a Sub-Servicer pursuant to Section 3.02 hereof and will shall not be deemed to be a Sub-Servicer under this Agreement.
(b) None If, pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and directly from the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdministrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D3.11(a)(iii) and (Eor Section 3.11(a)(vi) and Section 8.09prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee Trust Administrator made pursuant to Section 3.10 to the extent of amounts on deposit in the monthly remittance made to Collection Account on the Trustee on a Monthly related Servicer Remittance Date in accordance with this AgreementDate. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trust Administrator is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account Distribution Account, to the extent permitted under the terms of the Advance Facility, to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.11(a)(ii), Section 3.11(a)(iii) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.093.11(a)(vi), as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trust Administrator is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any Advance Facility agree to in writing delivered to the Trust Administrator. An Advance Facility may provide that the Servicer will otherwise cause the remittance of P&I Advance and/or Servicing Advance reimbursement amounts to the Advancing Person, in which case the foregoing sentences in this Section 3.26(b) shall not apply.
(dc) All Delinquency P&I Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-in first out” (FIFO) basis.
(d) None of the Trust Fund, such that an advance made earlier in time with respect any party to this Agreement or any other Person shall have any right or claim (including without limitation any right of offset or recoupment) to any Home Equity Loan shall be reimbursed amounts allocable under this Agreement to the Servicer who made that advance, before reimbursement of P&I Advances or Servicing Advances that have been assigned, conveyed or pledged to an advance made later in time with respect Advancing Person, or that relate to P&I Advances or Servicing Advances that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loanwere funded by an Advancing Person.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.293.26, including amendments to add provisions relating to a successor Servicermaster servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties to this Agreement without the consent of any Certificateholder, provided Certificateholder but with written confirmation from each Rating Agency that such the amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) shall not result in the reduction or withdrawal of each party hereto the then-current ratings of any such amendment shall be borne solely outstanding Class of Certificates or any other notes secured by collateral which includes all or a portion of the Servicer. The parties hereto hereby acknowledge and agree that: (a) Class CE Certificates, the Delinquency Advances Class P Certificates and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed the Residual Certificates, notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under contrary in this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-He3), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-He2)
Advance Facility. (a) The Servicer is hereby authorized to enter into a financing or other facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. No consent of the Depositor, the Trustee, the Certificateholders or any other party shall be required before the Servicer may enter into an Advance Facility. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement. An Advancing Person may designate a trustee, agent or custodian to receive any reimbursements due it in accordance with the documentation establishing the Advance Facility.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Arrearages, Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Arrearages, Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-C), Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-B)
Advance Facility. (a) The With respect to the Non-Designated Mortgage Loans, 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”) with any Person under which provides that (1) each such Servicer assigns or pledges to another Person (an “Advancing Person”) 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 of the Delinquency Advances and/or Servicing Advances required to be made by the such Servicer pursuant to this Agreement Agreement. No consent of the Trustee, Certificateholders or any other party (other than FSA) is required before such Servicer may enter into an Advance Facility; provided, however, that the consent of the Trustee shall be required before such Servicer may pledge or assign its rights cause to be reimbursed for Delinquency 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 AdvancesAdvances on a Servicer’s behalf, directly or indirectlyeach such Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, to an Advancing Person, although no and shall not be relieved of such obligations by virtue of such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing AdvancesFacility. If the each such Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then such 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 such Servicer shall be required to include 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 (“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) in the remittance to the Trustee made pursuant to this Agreement to the extent of amounts on deposit in the Collection Account on the Servicer Remittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Each 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 a Servicer enters into an Advance Facility and makes the election set forth in Section 3.22(a), such Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice and payment instruction (an “Advance Facility Notice”), stating providing the identity 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. If the Servicer enters into such Person or to a trustee or custodian (an “Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice funds any Delinquency Advance or any Servicing Advance may only be terminated by the joint written direction of the related Servicer and the Servicer provides the Trustee with an Officer’s Certificate that such related Advancing Person is entitled (and any related Advance Facility Trustee); provided, however, that the provisions of this Section 3.22 shall cease to reimbursementbe 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 related Servicer would be permitted to reimburse itself in accordance with Section 3.09(a)(ii), (iii) and (iv) hereof, assuming such Advancing Servicer had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, no Person shall be entitled to receive reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement for such amount to the extent provided in provisions of Section 8.29(c)4.01. Such Officer’s Certificate must specify Neither the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee nor FSA shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, Reimbursement Amount and shall the Depositor or the Trustee have any additional responsibility be entitled to track or monitor the administration of rely without independent investigation on the Advance Facility or Notice and on such Servicer’s report of the reimbursement for Delinquency Advances or amount of Advance Reimbursement Amounts and Servicing Advances, except Advance Reimbursement Amounts that were included in the remittance from such Servicer to remit reimbursements in accordance with payment instructions received the Trustee pursuant to Section 8.29(a3.09(a)(viii) or (ix). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Such Servicer shall maintain and provide to any successor Servicer and, and (upon request, the Trustee ) to FSA a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the 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 of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a Sub-Servicer set forth in Section 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 distributed with respect to each Mortgage Loan 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. Such documentation shall also require each electing Servicer to provide to the related Advancing Person or Advance Facility Trustee loan-by-loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each 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. Each Servicer shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by such Servicer to the extent the related rights to be reimbursed therefor have not been 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 8.29 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 8.293.22, including amendments to add provisions relating to a successor Servicer, may be entered into by the DepositorTrustee, the Sellers, the Trustee Seller and the such Servicer without the consent of any Certificateholder, provided that such amendment complies but only with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) the consent of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed FSA, notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described contrary in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track 11.01 of or monitor the administration of the financing arrangement between the Servicer and any Advancing Personelsewhere in this Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (CSFB Mortgage Sec Corp Hm Eq Pass THR Certs Ser 2003-7), Pooling and Servicing Agreement (Home Equity Pass-Through Certificates Series 2003-8)
Advance Facility. (a) The Servicer on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”Servicer") agrees to fund some may make all or all a portion of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds Servicer makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.06(b). Such Officer’s Certificate notice from the Advancing Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advancing Servicer's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.06 and with respect to the Advancing Servicer's statement with respect to the Section of this Agreement permits the Advance to be reimbursed. An Advancing Person Servicer whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and making will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b3.01(c) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09of the Standard Terms prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in made pursuant to Section 3.02(a) of the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this AgreementStandard Terms. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Servicer, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Asset Proceeds Account to the same extent (except as provided below) the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.01(c) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as of the case may be, Standard Terms had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant . An Advancing Servicer is NOT entitled to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, Trustee from the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable Asset Proceeds Account for any errors reimbursed Advances from funds held in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Asset Proceeds Account for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.future distribution pursuant to
Appears in 2 contracts
Samples: Trust Agreement (Saxon Asset Securities Co), Trust Agreement (Saxon Asset Securities Co)
Advance Facility. (a) The Servicer on behalf of the Issuing Entity, is hereby authorized to enter into a facility (such an arrangement, an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to may fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. No consent of the Indenture Trustee, the Noteholders, the Note Insurer or any other party shall be required before the Servicer may enter into an Advance Facility nor shall the Indenture Trustee, the Note Insurer or the Noteholders be a third party beneficiary of any obligation of an Advancing Person to the Servicer. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Indenture Trustee at the address set forth in Section 11.19 10.06 hereof a written notice (an “Advance Facility Notice”), stating (a) the identity of the Advancing PersonPerson and (b) the identity of the Person (the “Servicer’s Assignee”) that will, subject to Section 5.24(b) hereof, have the right to make withdrawals from the Collection Account pursuant to Section 5.03(b) hereof to reimburse previously unreimbursed Delinquency Advances and/or Servicing Advances (“Advance Reimbursement Amounts”). If the Servicer enters into such an Advance Facility pursuant to this Section 8.295.24, upon reasonable request of the Advancing Person, the Indenture Trustee shall execute a letter of acknowledgment acknowledgment, as prepared by the Servicer, Servicer confirming its receipt of written notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice purchases or funds any Delinquency Advance or any Servicing Advance and provides the Indenture Trustee with written notice acknowledged by the Servicer provides the Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursementreimbursement directly from the Indenture Trustee pursuant to the terms of the Advance Facility, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c5.24(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the Indenture Trustee, rather than the Servicer, and include the Servicer’s acknowledgment thereto or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Indenture Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvancing Person’s Certificate notice provided pursuant to this Section 8.295.24. An For the avoidance of doubt, an Advancing Person whose obligations hereunder under the Advance Facility are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed considered to be a Sub-Servicer under this Agreementsubservicer hereunder.
(b) None Notwithstanding the foregoing, and for the avoidance of doubt, (i) the Servicer and/or the Servicer’s Assignee shall only be entitled to reimbursement of Delinquency Advance reimbursement amounts hereunder from withdrawals from the Collection Account pursuant to Section 5.03(b) and (c) of this Agreement and shall not otherwise be entitled to make withdrawals or receive amounts that shall be deposited in each Payment Account, and (ii) none of the Depositor Indenture Trustee. the Note Insurer or the Noteholders shall have any right to, or otherwise be entitled to, receive any Delinquency Advance reimbursement amounts to which the Servicer or Servicer’s Assignee, as applicable, shall be entitled pursuant to Section 5.03(b) and (c) hereof. An Advance Facility may be terminated by the joint written direction of the Servicer and the related Advancing Person. Written notice of such termination shall be delivered to the Indenture Trustee in the manner set forth in Section 10.06 hereof. Neither the Issuing Entity nor the Indenture 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 Delinquency Advance reimbursement for Delinquency Advances or Servicing Advancesamount, nor, as a result of the existence of any Advance Facility, shall the Depositor Issuing Entity or the Indenture Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the payment of Delinquency Advance reimbursement for Delinquency Advances or Servicing Advances, except amounts to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a)the Servicer’s Assignee. The Servicer shall indemnify the Depositor, the Indenture Trustee, any successor Servicer, any Owner Servicer and the Trust Issuing Entity 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 resulted from or arose out of the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, Indenture Trustee or any successor Servicer or any OwnerServicer, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement. The Servicer shall maintain and provide to any successor Servicer and, upon request, the Indenture Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer and the Indenture Trustee, as applicable, shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer and the Indenture Trustee, as applicable, shall not be liable for any errors in such information.
(c) If an Advancing Person is entitled to reimbursement for any particular Delinquency Advance Facility is entered into, and if the Servicer so notifies the Trusteeor Servicing Advance as set forth in Section 5.24(a), then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b) clause C.29, Section 8.08(d)(D5.03(b) and (E) and Section 8.09c), but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Indenture Trustee made pursuant to Section 5.02 to the extent of amounts on deposit in the monthly remittance made to Collection Account on the Trustee on a Monthly related Servicer Remittance Date in accordance with this AgreementDate. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Indenture Trustee is hereby authorized to pay to the an Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate each Payment Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D5.03(b) and (E) and Section 8.09, as the case may bec), had the Servicer itself funded made such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-in first out” (FIFO) basis. In the event the Servicer’s Assignee shall have received some or all of an Delinquency Advance reimbursement amount related to Delinquency Advances and/or Servicing Advances that were made by a Person other than the Servicer or its related Advancing Person in error, then such that an advance made earlier in time with respect to any Home Equity Loan Servicer’s Assignee shall be required to remit any portion of such Delinquency Advance reimbursement amount to each Person entitled to such portion of such Delinquency Advance reimbursement amount. Without limiting the generality of the foregoing, the Servicer shall remain entitled to be reimbursed pursuant to Section 5.03(b) and (c) for all Delinquency Advances and/or Servicing Advances funded by the Servicer to the Servicer who made that advanceextent the related Delinquency Advance reimbursement amounts have not been assigned, before reimbursement of an advance made later in time with respect sold or pledged to that Home Equity Loan, and a predecessor such Advancing Person or Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity LoanAssignee.
(e) In making its determination that any the event the Servicer is terminated pursuant to Section 7.01, the Advancing Person shall succeed to the terminated Servicer’s right of reimbursement set forth in Section 5.03(b) and (c) to the extent of such Advancing Person’s financing of Delinquency Advance Advances or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor ServicerAdvances hereunder then remaining unreimbursed.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 5.24 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 8.295.24, including amendments to add provisions relating to a successor Servicer, may be entered into by the Indenture Trustee, the Sponsor, the Depositor, the Sellers, the Trustee Issuing Entity and the Servicer without the consent of any CertificateholderNoteholder or the Note Insurer, provided that such amendment complies with Section 11.1410.03 hereof. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency Advances and/or Servicing Advances financed by by, sold 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and the Indenture Trustee and the Trust Issuing Entity are not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances purchased or funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c)Agreement; and (c) the Indenture Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust), Sale and Servicing Agreement (Accredited Mortgage Loan REIT Trust)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.297.03(b)(D)(25), Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.297.03(b)(D)(25), Sections Section 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Chec Funding LLC), Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-B)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility (an “Advance Facility”) with any Person (any such Person, an "Advance Facility Counterparty") which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person"Advance Facility"), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advance Facility Counterparty's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer Subservicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer may direct, and if so directed the Trustee is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Servicing Agreement.
(c) If an Advance Facility is entered into, and if Upon request of the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as agrees to amounts advanced byexecute such acknowledgments, pledged or assigned tocertificates, and reimbursed to other documents recognizing the interests of any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors Advance Facility Counterparty in such information.
(g) Any amendment Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 8.29 or to any 3.20, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by Certificateholders or the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonTrustee.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Saxon Asset Securities Trust 2001-3), Pooling and Servicing Agreement (Saxon Asset Securities Co)
Advance Facility. (a) The Servicer and/or the Trustee on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees (1) under which the Servicer sells, assigns or pledges to fund some or all of the Delinquency Advancing Person the Servicer’s rights under this Agreement to be reimbursed for any P&I Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or (2) which provides that the Servicer Advancing Person may pledge or assign its rights to be reimbursed for Delinquency fund P&I Advances and/or Servicing Advances, directly or indirectly, Advances to an Advancing Personthe Trust Fund under this Agreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency P&I Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.293.26, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency P&I Advance or any Servicing Advance or is assigned the right to be reimbursed for any P&I Advance or Servicing Advance and provides the Trust Administrator with notice acknowledged by the Servicer provides the Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursementreimbursement directly from the Trust Administrator pursuant to the terms of the Advance Facility, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.26(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the TrusteeTrust Administrator, rather than the Servicer, and include the Servicer’s acknowledgment thereto or proof of an Event event of Default by the Servicer default under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Trustee Trust Administrator shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvancing Person’s Certificate notice provided pursuant to this Section 8.293.26. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency P&I Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any a Sub-Servicer pursuant to Section 3.02 hereof and will shall not be deemed to be a Sub-Servicer under this Agreement.
(b) None If, pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and directly from the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdministrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D3.11(a)(iii) and (Eor Section 3.11(a)(vi) and Section 8.09prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee Trust Administrator made pursuant to Section 3.10 to the extent of amounts on deposit in the monthly remittance made to Collection Account on the Trustee on a Monthly Servicer Remittance Date in accordance with this AgreementDate. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trust Administrator is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account Distribution Account, to the extent permitted under the terms of the Advance Facility, to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.11(a)(ii), Section 3.11(a)(iii) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.093.11(a)(vi), as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trust Administrator is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any Advance Facility agree to in writing delivered to the Trust Administrator. An Advance Facility may provide that the Servicer will otherwise cause the remittance of P&I Advance and/or Servicing Advance reimbursement amounts to the Advancing Person, in which case the foregoing sentences in this Section 3.26(b) shall not apply.
(dc) All Delinquency P&I Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-in first out” (FIFO) basis.
(d) None of the Trust Fund, such that an advance made earlier in time with respect any party to this Agreement or any other Person shall have any right or claim (including without limitation any right of offset or recoupment) to any Home Equity Loan shall be reimbursed amounts allocable under this Agreement to the Servicer who made that advance, before reimbursement of P&I Advances or Servicing Advances that have been assigned, conveyed or pledged to an advance made later in time with respect Advancing Person, or that relate to P&I Advances or Servicing Advances that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loanwere funded by an Advancing Person.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.293.26, including amendments to add provisions relating to a successor Servicermaster servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties to this Agreement without the consent of any Certificateholder, provided Certificateholder but with written confirmation from each Rating Agency that such the amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) shall not result in the reduction or withdrawal of each party hereto the then-current ratings of any such amendment shall be borne solely outstanding Class of Certificates or any other notes secured by collateral which includes all or a portion of the Servicer. The parties hereto hereby acknowledge and agree that: (a) Class CE Certificates, the Delinquency Advances Class P Certificates and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed the Residual Certificates, notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under contrary in this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ahl1)
Advance Facility. (a) The Servicer on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”Servicer") agrees to fund some may make all or all a portion of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds Servicer makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.06(b). Such Officer’s Certificate notice from the Advancing Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advancing Servicer's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.06 and with respect to the Advancing Servicer's statement with respect to the Section of this Agreement permits the Advance to be reimbursed. An Advancing Person Servicer whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and making will not be deemed to be a Sub-Sub- Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b3.01(c) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09of the Standard Terms prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in made pursuant to Section 3.02(a) of the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this AgreementStandard Terms. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Servicer, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Distribution Account to the same extent (except as provided below) the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.01(c) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as of the case may be, Standard Terms had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency . An Advancing Servicer is not entitled to be reimbursed by the Trustee from the --- Distribution Account for any reimbursed Advances and Servicing Advances made from funds held in the Collection Account for future distribution pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.3.04
Appears in 1 contract
Advance Facility. (a) The Servicer on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”Servicer") agrees to fund some may make all or all a portion of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds Servicer makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.06(b). Such Officer’s Certificate notice from the Advancing Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advancing Servicer's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.06 and with respect to the Advancing Servicer's statement with respect to the Section of this Agreement permits the Advance to be reimbursed. An Advancing Person Servicer whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and making will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b3.01(c) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09of the Standard Terms prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in made pursuant to Section 3.02(a) of the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this AgreementStandard Terms. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Servicer, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Asset Proceeds Account to the same extent (except as provided below) the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.01(c) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as of the case may be, Standard Terms had the Servicer itself funded such Delinquency Advance or Advance. An Advancing Servicer is NOT entitled to be reimbursed by the Trustee from the Asset Proceeds Account for any reimbursed Advances from funds held in the Asset Proceeds Account for future distribution pursuant to Section 3.04 of the Standard Terms. The Trustee is hereby authorized to pay directly to the Advancing Servicer such portion of the Servicing AdvanceFee as the parties to any advancing facility agree.
(dc) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first "first-in-first out” " (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to that the Trustee is acting as described in Section 8.29(c); and (c) the Trustee Successor Servicer its Advances shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Personbe reimbursed first.
Appears in 1 contract
Advance Facility. (a) The Trustee and the Trust Fund, at the direction of the Master Servicer and with the consent of the NIMS Insurer, after consultation with the Guarantor (or, if no NIM Notes are outstanding and the NIMS Insurer is not owed any amounts in respect of its guarantee of payment on such notes, the Guarantor), is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to fund some may make all or all a portion of the Delinquency 101 Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Master Servicer’s 's obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Master Servicer 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 extent provided in Section 8.29(c3.27(b). Such Officer’s Certificate must notice from the Advancing Person shall specify the amount of the reimbursement, reimbursement and shall specify which Section of this Agreement permits the remittance date, the written payment instructions for applicable Advance or Servicing Advance to be reimbursed. The Trustee shall be entitled to rely without independent investigation on the Advancing Person, 's statement with respect to the amount of any reimbursement pursuant to this Section 3.27 and with respect to the Advancing Person's statement with respect to the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29reimbursed. An Advancing Person whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Master Servicer or any a Sub-Servicer pursuant to Section 6.06 hereof and will not be deemed to be a Sub-Servicer under this Agreement. If the terms of a facility proposed to be entered into with an Advancing Person by the Trust Fund would not materially and adversely affect the interests of any Certificateholder, then the NIMS Insurer shall not withhold its consent, after consultation with the Guarantor, to the Trust Fund's entering into such facility.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Master Servicer shall not seek reimbursement be permitted to reimburse itself under any Section specified or for any Delinquency Advance or Servicing Advance made amount specified by an the Advancing Person in the notice described under Section 7.03(b3.27(a) clause C.29, Section 8.08(d)(D) above and (E) and Section 8.09acknowledged by the Master Servicer prior to the remittance to the Trust Fund, but instead the Master Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in the monthly remittance made pursuant to the Trustee on a Monthly Remittance Date in accordance with this AgreementSection 3.10(a). The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Distribution Account to the same extent the Master Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, the specified Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Master Servicer itself funded made such Delinquency Advance or Servicing Advance. The Trustee is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any advancing facility may agree.
(dc) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “"first in-first out” " (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Securities Corp Asset Back Cert Ser 2001-2)
Advance Facility. (a) The Applicable Servicer is hereby authorized to enter into a financing or other facility (any such arrangement an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to may fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that (in which event, the Applicable Servicer may pledge or assign its rights shall promptly provide notice thereof to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Personthe Trustee and Securities Administrator), although no such Advance Facility facility shall reduce or otherwise affect the Applicable Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Applicable Servicer enters into such an Advance Facility pursuant to this Section 8.293.26, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Applicable Servicer provides the Trustee and the Securities Administrator 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 extent provided in Section 8.29(c3.26(b). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the TrusteeSecurities Administrator, rather than the Servicer, Applicable Servicer or proof of an Event event of Default by the Servicer default under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Trustee Securities Administrator and the Master Servicer shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvancing Person’s Certificate notice provided pursuant to this Section 8.293.26. The Securities Administrator and the Master Servicer shall have no responsibility to track or monitor the administration of the Advance Facility. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Applicable Servicer or any a Sub-Servicer pursuant to Section 3.02 hereof and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Applicable Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D) and (E3.11(a)(iii) and Section 8.093.11(a)(vi) prior to the remittance to the Trust Fund, but instead the Applicable Servicer shall remit the such amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay the documentation establishing the Advance Facility to the such Advancing Person or to a trustee, agent or custodian (an “Advance Facility Trustee”) designated in by such Advancing Person. The Securities Administrator is hereby authorized to pay to the Officer’s Certificate specified in Section 8.29(a)Advancing Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Applicable Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.293.11(a)(ii), Sections 8.08(d)(D) and (ESection 3.11(a)(iii) and Section 8.093.11(a)(vi), as the case may be, had the Applicable Servicer itself funded such Delinquency Advance or Servicing Advance. The Securities Administrator is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any advancing facility agree in writing.
(dc) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(gd) Any amendment to this Section 8.29 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 8.293.26, including amendments to add provisions relating to a successor Servicer, may be entered into by the DepositorTrustee, the SellersInterim Servicer, the Trustee Master Servicer, the Securities Administrator, the Servicer and the Servicer Depositor without the consent of any Certificateholder, provided that notwithstanding anything to the contrary in this Agreement; provided, however, such amendment complies shall otherwise comply with Section 11.1414.01 hereof. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any related to such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed to the Applicable Servicer payable only without reimbursement from the cash flows and proceeds received under this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonFund.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2007-He1)
Advance Facility. (a) The Either (i) the Servicer or (ii) the Trustee, on behalf of the Trust Fund, with the consent of the Servicer, is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to may fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust Fund under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s 's obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.293.26, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. If the Trustee enters into such an Advance Facility pursuant to this Section 3.26, the Servicer shall also be a party to such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Officers' 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 extent provided in Section 8.29(c3.26(b). Such Officer’s Officers' Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the Trustee, rather than the Servicer, Servicer or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate Advancing Person's notice provided pursuant to this Section 8.293.26. The Trustee shall have no responsibility to track or monitor the administration of the Advance Facility. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any a Sub-Servicer pursuant to Section 3.02 hereof and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D) and (E3.11(a)(iii) and Section 8.093.11(a)(vi) prior to the remittance to the Trust Fund, but instead the Servicer shall remit the such amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay the documentation establishing the Advance Facility to the such Advancing Person or to a trustee, agent or custodian (an "Advance Facility Trustee") designated in by such Advancing Person. The Trustee is hereby authorized to pay to the Officer’s Certificate specified in Section 8.29(a)Advancing Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Distribution Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with 3.11(a)(ii), Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E3.11(a)(iii) and Section 8.093.11(a)(vi), as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trustee is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any advancing facility agree in writing.
(dc) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “"first in-first out” " (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(gd) Any amendment to this Section 8.29 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 8.293.26, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that notwithstanding anything to the contrary in this Agreement; provided, however, such amendment complies shall otherwise comply with Section 11.1411.01 hereof. All reasonable costs and expenses (including attorneys’ ' fees) of each party hereto of any related to such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 without reimbursement from the cash flows and proceeds received under this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonFund.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2004-Nc1)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility (an “Advance Facility”) with any Person (any such Person, an "Advance Facility Counterparty") which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person"Advance Facility"), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvance Facility Counterparty’s Certificate provided statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer Subservicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer may direct, and if so directed the Trustee is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Servicing Agreement.
(c) If an Advance Facility is entered into, and if Upon request of the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as agrees to amounts advanced byexecute such acknowledgments, pledged or assigned tocertificates, and reimbursed to other documents recognizing the interests of any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors Advance Facility Counterparty in such information.
(g) Any amendment Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 8.29 or to any 3.20, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by Certificateholders or the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Saxon Asset Securities Trust 2002-1)
Advance Facility. (a) The Each Servicer (other than PNC) is hereby authorized to enter into a financing or other facility (any such arrangement, an “Advance Facility”) with any Person under which provides that (1) such Servicer assigns or pledges to another Person (an “Advancing Person”) 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 of the Delinquency Advances and/or Servicing Advances required to be made by the such Servicer pursuant to this Agreement Agreement. No consent of the Master Servicer, Trust Administrator, Indenture Trustee, Noteholders or Certificateholders or any other party is required before a Servicer may enter into an Advance Facility; provided, however, that the consent of the Trust Administrator (which consent shall not be unreasonably withheld) shall be required before a Servicer may pledge or assign its rights cause to be reimbursed for Delinquency 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 AdvancesAdvances on a Servicer’s behalf, directly or indirectlysuch Servicer shall remain obligated pursuant to this Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, to an Advancing Person, although no and shall not be relieved of such obligations by virtue of such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing AdvancesFacility. If the a Servicer enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then such Servicer may elect by providing written notice to the Trust Administrator not to be permitted to reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.03 of this Agreement, but following any such election such Servicer shall be required to include 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 (“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) in the remittance to the Trust Administrator made pursuant to this Agreement to the extent of amounts on deposit in the related Custodial Account on the related Servicer Remittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in Interest Remittance Amounts or Principal Remittance Amounts or distributed to Noteholders. Any Servicer, if making the election set forth herein, shall report to the Trust Administrator the portions of the Reimbursement Amounts that consist of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts, respectively.
(b) If a Servicer enters into an Advance Facility and makes the election set forth in Section 3.23(a), such Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof Trust Administrator a written notice and payment instruction (an “Advance Facility Notice”), stating providing the identity Trust Administrator 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 Payment Dates. The payment instruction shall require the applicable Reimbursement Amounts to be distributed to the Advancing Person. If the Servicer enters into such Person or to a trustee or custodian (an “Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice funds any Delinquency Advance or any Servicing Advance may only be terminated by the joint written direction of the related Servicer and the Servicer provides the Trustee with an Officer’s Certificate that such related Advancing Person is entitled (and any related Advance Facility Trustee); provided, however, that the provisions of this Section 3.23 shall cease to reimbursementbe 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 Loans for which the related Servicer would be permitted to reimburse itself in accordance with Section 3.03(xii), (xiii), (xiv) and (xvi) hereof, assuming such Advancing Servicer had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, no Person shall be entitled to receive reimbursement from funds held in the related Custodial Account for future distribution to Noteholders pursuant to this Agreement for such amount to the extent provided in provisions of Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee3.19. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, Trust Administrator shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, Reimbursement Amount and shall the Depositor or the Trustee have any additional responsibility be entitled to track or monitor the administration of rely without independent investigation on the Advance Facility or Notice and on the reimbursement for Delinquency Advances or applicable Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advances, except Advance Reimbursement Amounts that were included in the remittance from the related Servicer to remit reimbursements in accordance with payment instructions received the Trustee pursuant to Section 8.29(a3.03(ii). The Each Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(cother than PNC) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, related Servicer and the successor Servicer shall not be liable for any errors in such information.
(gd) With respect to any Advance Facility pursuant to which a Servicer has made the election set forth in Section 3.23(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts distributed with respect to each Loan be allocated to outstanding unreimbursed Advances or Servicing Advances (as the case may be) made with respect to that Loan on a “first-in, first-out” (FIFO) basis. Such documentation shall also require the related Servicer to provide to the related Advancing Person or Advance Facility Trustee loan-by-loan information with respect to each Reimbursement Amount distributed by the Trust Administrator to such Advancing Person or Advance Facility Trustee on each Payment Date, to enable the Advancing Person or Advance Facility Trustee to make the FIFO allocation of each Reimbursement Amount with respect to each Loan. The related Servicer shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by such Servicer to the extent the related rights to be reimbursed therefor have not been assigned or pledged to an Advancing Person. If a Servicer enters into an Advance Facility, such Servicer shall indemnify the Trust Administrator and the Trust and any successor Servicer, as applicable, from and against any claims, losses, liabilities or damages resulting from the establishment of such Advance Facility and any claim by the related Advancing Person or any other 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 Trust Administrator, or failure by the successor Servicer or the Trust Administrator to remit funds as required by Section 3.23(b). Any amendment to this Section 8.29 3.23 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 8.293.23, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties hereto without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed Noteholder notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under contrary in Section 8.01 of or elsewhere in this Agreement for reimbursement of Delinquency Advances and/or Servicing Advances only to or the extent provided herein, and the Trustee and the Trust are not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonIndenture.
Appears in 1 contract
Samples: Servicing Agreement (CSFB Home Equity Mortgage Trust 2005-Hf1)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility with any Person (any such Person, an “Advance FacilityFacility Counterparty”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement (“Advance Reimbursement Rights”) pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person“Advance Facility”), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee and the NIMS Insurer, if any, with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Advance Facility Counterparty is entitled to reimbursement, such Advancing Person Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and the NIMS Insurer, if any, shall be entitled to conclusively rely without independent investigation on the OfficerAdvance Facility Counterparty’s Certificate provided statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer Subservicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if Upon request of the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as agrees to amounts advanced byexecute such reasonable acknowledgments, pledged or assigned tocertificates, and reimbursed to other reasonable documents recognizing the interests of any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors Advance Facility Counterparty in such information.
(g) Any amendment Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 8.29 or to any 3.20, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any CertificateholderCertificateholders, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) NIMS Insurer, if any, or the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aegis Asset Backed Securities Corp)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2006-A)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility with any Person (any such Person, an “Advance FacilityFacility Counterparty”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement (“Advance Reimbursement Rights”) pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person“Advance Facility”), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Indenture Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Advance Facility Counterparty is entitled to reimbursement, such Advancing Person Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Indenture Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvance Facility Counterparty’s Certificate provided statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer Subservicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer may direct, and if so directed the Indenture Trustee is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Servicing Agreement.
(c) If an Upon request of the Servicer, the Indenture Trustee agrees to execute such acknowledgments, certificates, and other documents recognizing the interests of any Advance Facility is entered into, Counterparty in such Advance Reimbursement Rights and if Servicing Fees as the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency may cause to be made subject to Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made Facilities pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 or to any 3.20, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any CertificateholderSecurityholders, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) Issuer or the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonIndenture Trustee.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Saxon Asset Securities Co)
Advance Facility. (a) The Servicer is hereby authorized to enter into a financing or other facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. No consent of the Depositor, the Master Servicer, the Securities Administrator, the Trustee, the Certificateholders or any other party shall be required before the Servicer may enter into an Advance Facility. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee and the Securities Administrator at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee and the Securities Administrator shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Securities Administrator and the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the TrusteeSecurities Administrator, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeSecurities Administrator. The Neither the Trustee nor the Securities Administrator shall have no any duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement. An Advancing Person may designate a trustee, agent or custodian to receive any reimbursements due it in accordance with the documentation establishing the Advance Facility.
(b) None of the Depositor Depositor, the Master Servicer, the Securities Administrator or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor Depositor, the Master Servicer, the Securities Administrator or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, the Master Servicer, the Securities Administrator any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, the Master Servicer, the Securities Administrator any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the TrusteeMaster Servicer, as the case may be, to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer or the TrusteeMaster Servicer, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Securities Administrator and the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee Securities Administrator in the monthly remittance made to the Trustee Securities Administrator on a Monthly Remittance Date in accordance with this Agreement. The TrusteeSecurities Administrator, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer (including the Master Servicer) and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the SellersSeller, the Master Servicer, the Securities Administrator, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and the Trustee Trustee, Securities Administrator and the Trust are not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee Securities Administrator as described in Section 8.29(c); and (c) the Trustee and Securities Administrator shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person. ARTICLE VIIIA MASTER SERVICING AND ADMINISTRATION OF HOME EQUITY LOANS Section 8A.01.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Equity Loan Trust 2007-Fre1)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee Indenture Trustee, the Master Servicer and the Trust Administrator at the address respective addresses set forth in Section 11.19 10.07 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.294.11, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee Trust Administrator 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 extent provided in Section 8.29(c4.11(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the TrusteeTrust Administrator, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeTrust Administrator. The Trustee Trust Administrator shall not have no any duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.294.11. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Subsub-Servicer servicer and will not be deemed to be a Subsub-Servicer servicer under this Agreement.
(b) None of the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Xxxxxxxxx Advances, except except, in the case of the Trust Administrator, to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a4.11(a). The Servicer shall indemnify the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer, any Owner Servicer and the Trust Issuer for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer or any Ownerthe Issuer, as the case may be, or failure by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, and the passage of any applicable cure or grace period, such that that, in the case of the Master Servicer, a Master Servicer Termination Event of Default occurs under this Agreement occurs Agreement, or in the case of the successor Servicer, the Master Servicer or the Trust Administrator, such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeTrust Administrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.096.05, but instead the Servicer shall remit the amounts relating to Advances to the Trustee Master Servicer for inclusion in the monthly remittance made to the Trustee Trust Administrator on a Monthly Servicer Remittance Date in accordance with this Agreement. The TrusteeTrust Administrator, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 4.11 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a4.11(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Collection Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest its Custodial Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D4.02(e) and (E) and Section 8.09, as the case may be6.05, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Mortgage Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Mortgage Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Mortgage Loan shall be reimbursed before reimbursement of a successor ServicerXxxxxxxx’s advances with respect to such Home Equity Mortgage Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Master Servicer, the Trust Administrator and the Indenture Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 4.11 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 8.294.11, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties hereto without the consent of any CertificateholderNoteholder, provided that such amendment complies with Section 11.1410.03. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and the Trustee Indenture Trustee, the Owner Trustee, the Trust Administrator, the Master Servicer and the Trust Issuer are not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee Trust Administrator as described in Section 8.29(c4.11(c); and (c) none of the Master Servicer, the Trust Administrator and the Indenture Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Aames Mortgage Investment Trust 2006-1)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.297.03(b)(D)(27), Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.297.03(b)(D)(27), Sections Section 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2005-C)
Advance Facility. (a) The Servicer is Wilshire and Ocwen are each hereby authorized to enter into a financing or other facility (any such arrangement, an “Advance Facility”) with any Person under which provides that such (1) Wilshire or Ocwen, as applicable, assigns or pledges to another Person (an “Advancing Person”) 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 of the Delinquency Advances and/or Servicing Advances required to be made by Wilshire or Ocwen, as applicable, pursuant to this Agreement. No consent of the Servicer Trustee, Certificateholders or any other party is required before Wilshire or Ocwen, 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 such Servicer’s behalf, Wilshire or Ocwen, as applicable, shall remain obligated pursuant to this Agreement or that the Servicer may pledge or assign its rights to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no relieved of such obligations by virtue of such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing AdvancesFacility. If the Servicer Wilshire or Ocwen enters into an Advance Facility, and for so long as an Advancing Person remains entitled to receive reimbursement for any Advances or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement, then Wilshire or Ocwen, 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 Wilshire or Ocwen, as applicable, shall be required to include amounts collected that would otherwise be retained by Wilshire or Ocwen, as applicable, to reimburse it for previously unreimbursed Advances (“Advance Reimbursement Amounts”) and/or previously unreimbursed Servicing 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) in the remittance to the Trustee made pursuant to this Agreement to the extent of amounts on deposit in the Collection Account on the related Servicer Cash Remittance Date. Notwithstanding anything to the contrary herein, in no event shall Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts be included in Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Wilshire or Ocwen, 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 Wilshire or Ocwen enters into an Advance Facility and makes the election set forth in Section 3.21(a), Wilshire or Ocwen, as applicable, and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice and payment instruction (an “Advance Facility Notice”), stating providing the identity 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. If the Servicer enters into such Person or to a trustee or custodian (an “Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified Trustee”) designated in the Advance Facility Notice. An Advance Facility Notice funds any Delinquency Advance may only be terminated by the joint written direction of Wilshire or any Servicing Advance Ocwen, as applicable, and the Servicer provides the Trustee with an Officer’s Certificate that such related Advancing Person is entitled (and any related Advance Facility Trustee); provided, however, that the provisions of this Section 3.21 shall cease to reimbursementbe applicable when all Advances and Servicing Advances funded by an Advancing Person, such 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 Wilshire or Ocwen, as applicable, would be permitted to reimburse itself in accordance with Section 3.08(ii), (iii) and (iv) hereof, assuming Wilshire or Ocwen, as applicable, had made the related Advance(s) and/or Servicing Advance(s). Notwithstanding the foregoing, no Person shall be entitled to receive reimbursement from funds held in the Collection Account for future distribution to Certificateholders pursuant to this Agreement for such amount to the extent provided in provisions of Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee4.01. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, Reimbursement Amount and shall the Depositor or the Trustee have any additional responsibility be entitled to track or monitor the administration of rely without independent investigation on the Advance Facility Notice and on the applicable Servicer’s report of the amount of Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts that were included in the remittance from Wilshire or Ocwen, as applicable, to the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Trustee pursuant to Section 8.29(a3.08(viii). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability Wilshire or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any OwnerOcwen, as the case may beapplicable, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor ServicerWilshire or Ocwen, as applicable, and the successor Servicer shall not be liable for any errors in such information.
(gd) 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 of Advances and/or Servicing Advances shall not be required to meet the criteria for qualification of a Subservicer set forth in Section 3.02 hereof.
(e) With respect to any Advance Facility pursuant to which Wilshire or Ocwen has made the election set forth in Section 3.21(a), the documentation establishing any Advance Facility shall require that Reimbursement Amounts distributed with respect to each Mortgage Loan 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. Such documentation shall also require Wilshire or Ocwen, as applicable, to provide to the related Advancing Person or Advance Facility Trustee loan-by-loan information with respect to each Reimbursement Amount distributed by the Trustee to such Advancing Person or Advance Facility Trustee on each 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. Wilshire or Ocwen, as applicable, shall remain entitled to be reimbursed by the Advancing Person or Advance Facility Trustee for all Advances and Servicing Advances funded by Wilshire or Ocwen, as applicable, to the extent the related rights to be reimbursed therefor have not been assigned or pledged to an Advancing Person.
(f) If Wilshire or Ocwen enters into an Advance Facility, Wilshire or Ocwen, 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 8.29 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 8.293.21, including amendments to add provisions relating to a successor Servicer, may be entered into by the DepositorTrustee, the SellersSeller and Wilshire or Ocwen, the Trustee and the Servicer as applicable, without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed Certificateholder notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described contrary in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track 10.01 of or monitor the administration of the financing arrangement between the Servicer and any Advancing Personelsewhere in this Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (CSFB Home Equity Mortgage Trust 2005-3)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility with any Person (any such Person, an “Advance FacilityFacility Counterparty”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement (“Advance Reimbursement Rights”) pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person“Advance Facility”), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee and the NIMS Insurer, if any, with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Advance Facility Counterparty is entitled to reimbursement, such Advancing Person Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and the NIMS Insurer, if any, shall be entitled to conclusively rely without independent investigation on the OfficerAdvance Facility Counterparty’s Certificate provided statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer subservicer under this Agreement.
(b) None If so required pursuant to the terms of an Advance Facility, the Servicer is hereby authorized to and shall pay, to the Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or such portion of the Depositor or Servicing Fee as may be so specified in the Advance Facility, that would otherwise be payable to the Servicer pursuant to this Agreement.
(c) Upon request of the Servicer, the Trustee shallagrees to execute such reasonable acknowledgments, as a result of certificates, and other reasonable documents recognizing the existence interests of any Advance FacilityFacility Counterparty in such Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.20, have and such other documents in connection with such Advance Facilities as may be reasonably requested from time to time by any additional duty or liability with respect to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result Advance Facility Counterparty. The implementation of the existence arrangement described in this Section shall not require the consent of any Advance FacilityCertificateholders, shall the Depositor NIMS Insurer, if any, or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). Trustee.
(d) The Servicer shall indemnify the DepositorTrustee, the TrusteeTrust Fund, each Certificateholder and any successor Servicer, any Owner and the Trust NIMS Insurer for any claimand all claims, losslosses, liability or damage liabilities, damages, costs and expenses resulting from any claim by the Advancing PersonAdvance Facility Counterparty, except (with respect to the trustee and any successor Servicer) to the extent that such claim, loss, liability liability, damages or damage resulted expense results from or arose arises out of the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any Trustee or successor Servicer or any Owner, as the case may beServicer, or failure by the Trustee or successor Servicer or the Trustee, as the case may be, to remit funds as required by this Agreement Agreement, or the commission of an any act or an omission to act by the Trustee or successor Servicer or the Trustee, as the case may be, and the passage expiration of any applicable cure or grace period, period such that a Servicer Termination an Event of Default under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29Section, including amendments to add provisions relating to a successor Servicer, may be entered into by the Seller, the Depositor, the Sellers, Servicer and the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies is otherwise effected in compliance with the provisions of Section 11.1411.01. All reasonable costs and expenses (including attorneys’ fees) of incurred by each party hereto of any such amendment or incurred by (or that would otherwise be incurred by) the Trust Fund shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: that (ai) the Delinquency any Advances and/or Servicing Advances financed by and/or pledged to an Advancing Person Advance Facility Counterparty 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and the Trustee and the Trust are is not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or or Servicing Advances financed by the Advancing PersonAdvance Facility Counterparty; (bii) the Servicer will be responsible for remitting to the Advancing Person Advance Facility Counterparty the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing PersonAdvance Facility Counterparty, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c)Agreement; and (ciii) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonAdvance Facility Counterparty.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aegis Asset Backed Sec Corp Mort Pass THR Certs Ser 2003-2)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility (an “Advance Facility”) with any Person (any such Person, an "Advance Facility Counterparty") which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement or the Servicing Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person"Advance Facility"), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Servicer is entitled to reimbursement, such Advancing Person Servicer shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.04(b). Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advance Facility Counterparty's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.04 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer may direct, and if so directed the Trustee is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Servicing Agreement.
(c) If an Advance Facility is entered into, and if Upon request of the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as agrees to amounts advanced byexecute such acknowledgments, pledged or assigned tocertificates, and reimbursed to other documents recognizing the interests of any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors Advance Facility Counterparty in such information.
(g) Any amendment Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 8.29 or to any 3.04, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by Certificateholders or the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.Trustee
Appears in 1 contract
Samples: Trust Agreement (Saxon Asset Securities Trust 2001-2)
Advance Facility. (a) The Servicer Trustee or the Trust Administrator on behalf of the Trust, is hereby authorized authorized, with the consent of the Master Servicer and the Certificate Insurer, to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to may fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Master Servicer’s 's obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee Trust Administrator and the Certificate Insurer with an Officer’s Certificate notice acknowledged by the Master Servicer 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 extent provided in Section 8.29(c3.29(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee Trust Administrator shall have no duty or liability to the Master Servicer with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate Advancing Person's notice provided pursuant to this Section 8.293.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed a Subservicer pursuant to be a Sub-Servicer under this AgreementSection 3.02 hereof.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility Advancing Person is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek entitled to reimbursement for any particular Delinquency Advance or Servicing Advance made by an Advancing Person Advance, then the Master Servicer shall not be permitted to reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D3.11(a)(iii), Section 3.11(a)(vi) and (E) and or Section 8.093.11(a)(ix), but instead the Master Servicer shall remit deposit such amount in the Collection Account as collected and include such amounts relating to Advances in the applicable remittance to the Trustee Trust Administrator made pursuant to Section 3.10(b) to the extent of amounts on deposit in the monthly remittance made to Collection Account on the Trustee on a Monthly related Master Servicer Remittance Date in accordance with this AgreementDate. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trust Administrator is hereby authorized to pay to the an Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Master Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.11(a)(ii), Section 3.11(a)(iii), Section 3.11(a)(vi) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.093.11(a)(ix), as the case may be, had the Master Servicer itself funded made such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (New Century Mort Sec Inc New Cent Hm Eq Ln Tr Ser 2000-Nca)
Advance Facility. (a) The Servicer and/or the Trustee on behalf of the Trust Fund is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees (1) under which the Servicer sells, assigns or pledges to fund some or all of the Delinquency Advancing Person the Servicer’s rights under this Agreement to be reimbursed for any P&I Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or (2) which provides that the Servicer Advancing Person may pledge or assign its rights to be reimbursed for Delinquency fund P&I Advances and/or Servicing Advances, directly or indirectly, Advances to an Advancing Personthe Trust Fund under this Agreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency P&I Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.293.26, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency P&I Advance or any Servicing Advance or is assigned the right to be reimbursed for any P&I Advance or Servicing Advance and provides the Trust Administrator with notice acknowledged by the Servicer provides the Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursementreimbursement directly from the Trust Administrator pursuant to the terms of the Advance Facility, such Advancing Person shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c3.26(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the TrusteeTrust Administrator, rather than the Servicer, and include the Servicer’s acknowledgment thereto or proof of an Event event of Default by the Servicer default under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeFacility. The Trustee Trust Administrator shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the OfficerAdvancing Person’s Certificate notice provided pursuant to this Section 8.293.26. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency P&I Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Servicer or any a Sub-Servicer pursuant to Section 3.02 hereof and will shall not be deemed to be a Sub-Servicer under this Agreement.
(b) None If, pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and directly from the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdministrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person reimburse itself therefor under Section 7.03(b) clause C.293.11(a)(ii), Section 8.08(d)(D3.11(a)(iii) and (Eor Section 3.11(a)(vi) and Section 8.09prior to the remittance to the Trust Fund, but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee Trust Administrator made pursuant to Section 3.10 to the extent of amounts on deposit in the monthly remittance made to Collection Account on the Trustee on a Monthly Servicer Remittance Date in accordance with this AgreementDate. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trust Administrator is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account Distribution Account, to the extent permitted under the terms of the Advance Facility, to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.11(a)(ii), Section 3.11(a)(iii) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.093.11(a)(vi), as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trust Administrator is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any Advance Facility agree to in writing delivered to the Trust Administrator. An Advance Facility may provide that the Servicer will otherwise cause the remittance of P&I Advance and/or Servicing Advance reimbursement amounts to the Advancing Person, in which case the foregoing sentences in this Section 3.26(b) shall not apply.
(dc) All Delinquency P&I Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-in first out” (FIFO) basis.
(d) None of the Trust Fund, such that an advance made earlier in time with respect any party to this Agreement or any other Person shall have any right or claim (including without limitation any right of offset or recoupment) to any Home Equity Loan shall be reimbursed amounts allocable under this Agreement to the Servicer who made that advance, before reimbursement of P&I Advances or Servicing Advances that have been assigned, conveyed or pledged to an advance made later in time with respect Advancing Person, or that relate to P&I Advances or Servicing Advances that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loanwere funded by an Advancing Person.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.293.26, including amendments to add provisions relating to a successor Servicermaster servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties to this Agreement without the consent of any Certificateholder, provided Certificateholder but with written confirmation from each Rating Agency that such the amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) shall not result in the reduction or withdrawal of each party hereto the then-current ratings of any such amendment shall be borne solely outstanding Class of Certificates or any other notes secured by collateral which includes all or a portion of the Servicer. The parties hereto hereby acknowledge and agree that: (a) Class CE Certificates, the Delinquency Advances Class P Certificates and/or Servicing Advances financed by and/or pledged to an Advancing Person under any Advance Facility are obligations owed the Residual Certificates, notwithstanding anything to the Servicer payable only from the cash flows and proceeds received under contrary in this Agreement for reimbursement of Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Amc1)
Advance Facility. (a) The Each of (i) the Trustee on behalf of the Trust Fund, with the consent of the Servicer and (ii) the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an “"Advance Facility”") with any Person under which provides that such (1) the Servicer assigns or pledges to another Person (an “"Advancing Person”") the 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 of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement. The Trustee is further authorized, subject to Section 11.01, to enter into any amendment of this Agreement in connection with such facility. No consent of the Trustee, the Certificateholders or that any other party is required before the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters 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 Servicer's behalf, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility remain obligated pursuant to this Section 8.29Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, upon reasonable request and shall not be relieved of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared such obligations by the Servicer, confirming its receipt of notice of the existence virtue of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Servicer 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 extent provided in Section 8.29(c8.16(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, reimbursement and must specify which Section of this Agreement permits the remittance date, the written payment instructions for applicable Advance or Servicing Advance to be reimbursed. The Trustee shall be entitled to rely without independent investigation on the Advancing Person, 's statement with respect to the amount of any reimbursement pursuant to this Section 8.16 and with respect to the Advancing Person's statement with respect to the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29reimbursed. An Advancing Person whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Servicer or any a Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, into and if the Servicer so notifies the Trusteeprovides, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b) clause C.293.11(ii), Section 8.08(d)(D) and (E3.11(iii), Section 3.11(v), Section 3.11(vi), Section 3.11(vii) and Section 8.094.04(b) prior to the remittance to the Trust Fund, but instead instead, in such event, the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in the monthly remittance made pursuant to the Trustee on a Monthly Remittance Date in accordance with this AgreementSection 3.10(a). The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Distribution Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.293.11(ii), Sections 8.08(d)(D) and (E) and Section 8.093.11(iii), as the case may beSection 3.11(v), had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.Section
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp First Frank Mort Ln Tr 2002-Ff2)
Advance Facility. (a) The Servicer is Option One and Wilshire are each hereby authorized to enter into a financing or other facility (any such arrangement, an “"Advance Facility”") with any Person under which provides that such (1) Option One or Wilshire, as applicable, assigns or pledges to another Person (an “"Advancing Person”") 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 of the Delinquency Advances and/or Servicing Advances required to be made by Option One or Wilshire, as applicable, pursuant to this Agreement. No consent of the Servicer Trustee, Certificateholders or any other party is required before Option One 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 Option One 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 such Servicer's behalf, Option One or Wilshire, as applicable, shall remain obligated pursuant to this Agreement or that the Servicer may pledge or assign its rights to make Advances and Servicing Advances pursuant to and as required by this Agreement, and shall not be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no relieved of such obligations by virtue of such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing AdvancesFacility. If the Servicer Option One or Wilshire enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that for so long as an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate that such Advancing Person is entitled to reimbursement, such Advancing Person shall be remains entitled to receive reimbursement for any Advances or Servicing Advances outstanding and previously unreimbursed pursuant to this Agreement for such amount Agreement, then Option One or Wilshire, as applicable, may elect by providing written notice to the extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance Trustee not to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person permitted to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency reimburse itself for Advances and/or Servicing Advances, as applicable, pursuant to Section 3.08 of this Agreement, but following any such election Option One or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing AdvancesWilshire, as applicable, shall not be required to meet the qualifications of the Servicer include amounts collected that would otherwise be retained by Option One or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or the Trustee shallWilshire, as a result of the existence of any applicable, to reimburse it for previously unreimbursed Advances ("Advance FacilityReimbursement Amounts") and/or previously unreimbursed Servicing Advances ("Servicing Advance Reimbursement Amounts" and together with Advance Reimbursement Amounts, have any additional duty or liability with respect to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements "Reimbursement Amounts") (in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage resulting from any claim by the Advancing Person, except each case to the extent that such claim, loss, liability or damage resulted from or arose out type of Reimbursement Amount is included in the gross negligence, recklessness or willful misconduct Advance Facility) in the remittance to the Trustee made pursuant to this Agreement to the extent of amounts on deposit in the Collection Account on the part of related Servicer Cash Remittance Date. Notwithstanding anything to the Depositorcontrary herein, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an in no event shall Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance Reimbursement Amounts or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29Reimbursement Amounts be included in Interest Remittance Amounts or Principal Remittance Amounts or distributed to Certificateholders. Option One or Wilshire, Section 8.08(d)(D) and (E) and Section 8.09as applicable, but instead if making the Servicer election set forth herein, shall remit the amounts relating to Advances report to the Trustee in the monthly remittance made to portions of the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt Reimbursement Amounts that consist of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances Advance Reimbursement Amounts and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29Advance Reimbursement Amounts, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advancerespectively.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2004-3)
Advance Facility. (a) The Master Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to may fund some or all of the Delinquency Monthly Advances and/or Servicing Advances required to be made by the Servicer pursuant to under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Master Servicer’s 's obligation to fund such Delinquency Monthly Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Monthly Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Master Servicer 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 extent provided in Section 8.29(c5.15(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Monthly Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29reimbursed. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Monthly Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed a Subservicer pursuant to be a Sub-Servicer under this AgreementSection 5.01(b) hereof.
(b) None of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect If an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances any particular Monthly Advance or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdvance, then the Master Servicer shall not seek reimbursement for any Delinquency Advance be permitted to reimburse itself therefor under Section 5.04(ii) or Servicing Advance made by Section 5.04(viii), and shall include such amounts in the applicable deposits to the Certificate Account. The Trustee is hereby authorized to pay to an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Monthly Advances and Servicing Advances from the Certificate Account to the same extent the Master Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Monthly Advances and/or Servicing Advances in accordance with Section 7.03(b5.04 (ii) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.095.04(viii), as the case may be, had the Master Servicer itself funded made such Delinquency Monthly Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant . Any such payment will be deemed to be a payment by the Trust to the terms Master Servicer and a payment by the Master Servicer to the Advancing Person. This section shall not create any rights of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such the Advancing Person against the Trust. In no event may an Advancing Person determine that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become is a Nonrecoverable Advance, the Servicer shall apply the same criteria in making ; such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been be made by the Master Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 or to any other provision of this Agreement that may be necessary or appropriate to effect accordance with the terms of an Advance Facility as described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Personhereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Funding Corp)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee Indenture Trustee, the Master Servicer and the Trust Administrator at the address respective addresses set forth in Section 11.19 10.07 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.294.11, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee Trust Administrator 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 extent provided in Section 8.29(c4.11(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the TrusteeTrust Administrator, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeTrust Administrator. The Trustee Trust Administrator shall not have no any duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.294.11. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Subsub-Servicer servicer and will not be deemed to be a Subsub-Servicer servicer under this Agreement.
(b) None of the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except except, in the case of the Trust Administrator, to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a4.11(a). The Servicer shall indemnify the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer, any Owner Servicer and the Trust Issuer for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer or any Ownerthe Issuer, as the case may be, or failure by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, and the passage of any applicable cure or grace period, such that that, in the case of the Master Servicer, a Master Servicer Termination Event of Default occurs under this Agreement occurs Agreement, or in the case of the successor Servicer, the Master Servicer or the Trust Administrator, such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeTrust Administrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.096.05, but instead the Servicer shall remit the amounts relating to Advances to the Trustee Master Servicer for inclusion in the monthly remittance made to the Trustee Trust Administrator on a Monthly Servicer Remittance Date in accordance with this Agreement. The TrusteeTrust Administrator, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 4.11 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a4.11(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Collection Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest its Custodial Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D4.02(e) and (E) and Section 8.09, as the case may be6.05, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Mortgage Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Mortgage Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Mortgage Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Mortgage Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Master Servicer, the Trust Administrator and the Indenture Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 4.11 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 8.294.11, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties hereto without the consent of any CertificateholderNoteholder, provided that such amendment complies with Section 11.1410.03. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and the Trustee Indenture Trustee, the Owner Trustee, the Trust Administrator, the Master Servicer and the Trust Issuer are not, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee Trust Administrator as described in Section 8.29(c4.11(c); and (c) none of the Master Servicer, the Trust Administrator and the Indenture Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Aames Mortgage Investment Trust 2005-4)
Advance Facility. (a) The Each of (i) the Trustee on behalf of the Trust Fund, with the consent of the Servicer and (ii) the Servicer is hereby authorized to enter into a financing or other facility (any such arrangement, an “"Advance Facility”") with any Person under which provides that such (1) the Servicer assigns or pledges to another Person (an “"Advancing Person”") the 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 of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement. The Trustee is further authorized, subject to Section 11.01, to enter into any amendment of this Agreement in connection with such facility. No consent of the Trustee, the Certificateholders or that any other party is required before the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters 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 Servicer's behalf, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility remain obligated pursuant to this Section 8.29Agreement to make Advances and Servicing Advances pursuant to and as required by this Agreement, upon reasonable request and shall not be relieved of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared such obligations by the Servicer, confirming its receipt of notice of the existence virtue of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds makes all or a portion of any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Servicer 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 extent provided in Section 8.29(c8.16(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, reimbursement and must specify which Section of this Agreement permits the remittance date, the written payment instructions for applicable Advance or Servicing Advance to be reimbursed. The Trustee shall be entitled to rely without independent investigation on the Advancing Person, 's statement with respect to the amount of any reimbursement pursuant to this Section 8.16 and with respect to the Advancing Person's statement with respect to the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29reimbursed. An Advancing Person whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the a Servicer or any a Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility advancing facility is entered into, into and if the Servicer so notifies the Trusteeprovides, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b) clause C.293.11(ii), Section 8.08(d)(D) and (E3.11(iii), Section 3.11(v), Section 3.11(vi), Section 3.11(vii) and Section 8.094.04(b) prior to the remittance to the Trust Fund, but instead instead, in such event, the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Trustee in the monthly remittance made pursuant to the Trustee on a Monthly Remittance Date in accordance with this AgreementSection 3.10(a). The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Distribution Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b3.11(ii), Section 3.11(iii), Section 3.11(v), Section 3.11(vi), Section 3.11(vii) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.094.04(b), as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trustee is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any advancing facility agree.
(dc) All Delinquency Upon request of the Servicer, the Trustee agrees to execute such acknowledgments, certificates and other documents recognizing the interests of any Advancing Person in the Servicer's reimbursements rights relating to such Advances and Servicing Advances made pursuant as may be reasonably requested from time to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Secs Corp First Franklin Mort Ln Tr 2002-Ff4)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Arrearages, Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Arrearages, Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the SellersSeller, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2006-B)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “"Advance Facility”") with any Person which provides that such Person (an “"Advancing Person”") agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s 's obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee Indenture Trustee, the Master Servicer and the Trust Administrator at the address respective addresses set forth in Section 11.19 10.07 hereof a written notice (an “"Advance Facility Notice”"), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.294.11, upon reasonable request of the Advancing Person, the Trustee Trust Administrator shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the Trustee Trust Administrator with an Officer’s '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 extent provided in Section 8.29(c4.11(c). Such Officer’s 's Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the TrusteeTrust Administrator, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the TrusteeTrust Administrator. The Trustee Trust Administrator shall not have no any duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s 's Certificate provided pursuant to this Section 8.294.11. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s 's rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Subsub-Servicer servicer and will not be deemed to be a Subsub-Servicer servicer under this Agreement.
(b) None of the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor Depositor, the Master Servicer, the Trust Administrator or the Indenture Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except except, in the case of the Trust Administrator, to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a4.11(a). The Servicer shall indemnify the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer, any Owner Servicer and the Trust Issuer for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Master Servicer, the Trust Administrator, the Indenture Trustee, any successor Servicer or any Ownerthe Issuer, as the case may be, or failure by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, to remit funds as required by this Agreement or the commission of an act or omission to act by the successor Servicer, the Master Servicer or the TrusteeTrust Administrator, as the case may be, and the passage of any applicable cure or grace period, such that that, in the case of the Master Servicer, a Master Servicer Termination Event of Default occurs under this Agreement occurs Agreement, or in the case of the successor Servicer, the Master Servicer or the Trust Administrator, such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeTrust Administrator, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.096.05, but instead the Servicer shall remit the amounts relating to Advances to the Trustee Master Servicer for inclusion in the monthly remittance made to the Trustee Trust Administrator on a Monthly Servicer Remittance Date in accordance with this Agreement. The TrusteeTrust Administrator, upon its receipt of an Officer’s 's Certificate in accordance with Section 8.29 4.11 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s 's Certificate specified in Section 8.29(a4.11(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Collection Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest its Custodial Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D4.02(e) and (E) and Section 8.09, as the case may be6.05, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “"first in-first out” " (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Mortgage Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Mortgage Loan, and a predecessor Servicer’s 's advances with respect to any particular Home Equity Mortgage Loan shall be reimbursed before reimbursement of a successor Servicer’s 's advances with respect to such Home Equity Mortgage Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Master Servicer, the Trust Administrator and the Indenture Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 4.11 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 8.294.11, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer parties hereto without the consent of any CertificateholderNoteholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person10.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Aames Mortgage Investment Trust 2005-2)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.2923, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.2923, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Centex Home Equity Loan Trust 2006-A)
Advance Facility. (a) The Master Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to may fund some or all of the Delinquency Monthly Advances and/or Servicing Advances required to be made by the Servicer pursuant to under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Master Servicer’s 's obligation to fund such Delinquency Monthly Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Monthly Advance or any Servicing Advance and the Servicer provides the Trustee with an Officer’s Certificate notice acknowledged by the Master Servicer 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 extent provided in Section 8.29(c3.21(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Monthly Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate Advancing Person's notice provided pursuant to this Section 8.293.21. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Monthly Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed a Subservicer pursuant to be a Sub-Servicer under this AgreementSection 3.02 hereof.
(b) None of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect If an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances any particular Monthly Advance or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdvance, then the Master Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person be permitted to reimburse itself therefor under Section 7.03(b3.07(a)(iv) clause C.29, or Section 8.08(d)(D) and (E) and Section 8.093.07(a)(v), but instead the Master Servicer shall remit the such amounts relating to Advances to the Trustee in (at the same time that the Master Servicer makes the monthly remittance made to the Trustee to the extent of amounts on a Monthly Remittance Date deposit in accordance with this Agreementthe Certificate Account on the related Determination Date). The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the an Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Monthly Advances and Servicing Advances from the Certificate Distribution Account to the same extent the Master Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Monthly Advances and/or Servicing Advances in accordance with Section 7.03(b3.07(a)(iv) clause C.29, Sections 8.08(d)(D) and (E) and or Section 8.093.07(a)(v), as the case may be, had the Master Servicer itself funded made such Delinquency Monthly Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WMC Secured Assets Corp WMC Mort Pass THR Cert Ser 2000-A)
Advance Facility. (a) The Servicer is hereby authorized to enter into any facility with any Person (any such Person, an “Advance Facility Counterparty”) under which the Servicer may pledge or sell its rights to receive reimbursement of Advances pursuant to this Agreement (“Advance Reimbursement Rights”) pursuant to 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 facility portion of the Advances (any such facility, an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Delinquency Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee Securities Administrator and the NIMS Insurer, if any, with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Advance Facility Counterparty is entitled to reimbursement, such Advancing Person Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty, if so required, and the Servicer must specify the amount of the reimbursementreimbursement and must specify which Section of this Agreement permits the Delinquency Advance to be reimbursed. The Securities Administrator and the NIMS Insurer, if any, shall be entitled to rely without independent investigation on the remittance date, Advance Facility Counterparty’s statement with respect to the written payment instructions for amount of any reimbursement pursuant to this Section 3.20 and with respect to the Advancing Person, Advance Facility Counterparty’s statement with respect to the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the reimbursed. An Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer subservicer under this Agreement.
(b) None If so required pursuant to the terms of an Advance Facility, the Servicer is hereby authorized to and shall pay to the Advance Facility Counterparty, or cause the payment to the Advance Facility Counterparty of, (i) reimbursements for Advances; and (ii) all or such portion of the Depositor 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 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 or the Trustee shallServicer’s right to reimbursement of Advances so assigned, as a result provided that any successor Servicer shall have no obligation to pay any portion of the existence Servicing Fee or its right to reimbursement of Advances to any such Advance Facility.
(c) Whether or not an Advance Facility is in place, reimbursement amounts allocated to reimburse Advances made with respect to any particular Mortgage Loan shall be allocated to the reimbursement of the unreimbursed Advances made with respect to that Mortgage Loan on a “first-in, first out” (“FIFO”) basis, such that the reimbursement amounts shall be applied to reimburse the Advance for that Mortgage Loan that was disbursed earliest in time first, and to reimburse the Advance for that Mortgage Loan that was disbursed latest in time last. Liquidation Proceeds with respect to a Mortgage Loan shall be applied to reimburse Servicing Advances outstanding with respect to that Mortgage Loan before being applied to reimburse Delinquency Advances outstanding with respect to that Mortgage Loan. The Servicer shall provide to the related Advance Facility Counterparty loan-by-loan information with respect to each reimbursement amount remitted to such Advance Facility Counterparty, to enable the Advance Facility Counterparty to make the FIFO allocation of each such reimbursement amount with respect to each Mortgage Loan.
(d) Upon request of the Servicer and provision by the Servicer of all necessary forms, the Securities Administrator agrees to execute such reasonable acknowledgments, certificates, and other reasonable documents recognizing the interests of any Advance FacilityFacility Counterparty in such Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 3.20, have and such other documents in connection with such Advance Facilities as may be reasonably requested from time to time by any additional duty or liability with respect to the calculation or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result Advance Facility Counterparty. The implementation of the existence arrangement described in this Section shall not require the consent of any Advance FacilityCertificateholders, shall the Depositor NIMS Insurer, if any, the Securities Administrator or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). Trustee.
(e) The Servicer shall indemnify the DepositorTrustee, the TrusteeSecurities Administrator, any successor the Master Servicer, any Owner and the Trust Fund, each Certificateholder and any NIMS Insurer for any claimand all claims, losslosses, liability or damage liabilities, damages, costs and expenses resulting from any claim by the Advancing PersonAdvance Facility Counterparty, except (with respect to the Trustee, the Securities Administrator, the Master Servicer and any successor Servicer) to the extent that such claim, loss, liability liability, damages or damage resulted expense results from or arose arises out of the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor the Securities Administrator, the Master Servicer or any Ownersuccessor Servicer, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicerapplicable.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29Section, including amendments to add provisions relating to a successor Servicer, may be entered into by the Seller, the Depositor, the SellersServicer, the Trustee Master Servicer, the Securities Administrator, the Custodian, the Credit Risk Manager and the Servicer Trustee without the consent of any Certificateholder, provided that such amendment complies is otherwise effected in compliance with the provisions of Section 11.1410.01. All reasonable costs and expenses (including attorneys’ fees) of incurred by each party hereto of any such amendment or incurred by (or that would otherwise be incurred by) the Trust Fund shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: that (ai) the Delinquency Advances and/or Servicing any Advances financed by and/or pledged to an Advancing Person Advance Facility Counterparty 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 Delinquency Advances and/or Servicing Advances only to the extent provided herein, and none of the Master Servicer, the Securities Administrator or the Trustee and the Trust are notis, as a result of the existence of any Advance Facility, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing PersonAdvance Facility Counterparty; (bii) the Servicer will be responsible for remitting to the Advancing Person Advance Facility Counterparty the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing PersonAdvance Facility Counterparty, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c)Agreement; and (ciii) none of the Master Servicer, the Securities Administrator or the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonAdvance Facility Counterparty.
Appears in 1 contract
Advance Facility. (a) The With the prior consent of the Note Insurer (which consent shall not be unreasonably withheld) the Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “"Advancing Person”") agrees to may fund some or all of the Delinquency Monthly Advances and/or Servicing Advances required to be made by the Servicer pursuant to under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s 's obligation to fund such Delinquency Monthly Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Monthly Advance or any Servicing Advance and provides the Indenture Trustee with notice acknowledged by the Servicer provides the 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 extent provided in Section 8.29(c5.16(b). Such Officer’s Certificate notice from the Advancing Person must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Monthly Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Indenture Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate Advancing Person's notice provided pursuant to this Section 8.295.16. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Monthly Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed a Subservicer pursuant to be a Sub-Servicer under this AgreementSection 5.01(a) hereof.
(b) None of the Depositor or the Trustee shall, as a result of the existence of any Advance Facility, have any additional duty or liability with respect If an Advancing Person is entitled to the calculation or payment of any reimbursement for Delinquency Advances any particular Monthly Advance or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the TrusteeAdvance, then the Servicer shall not seek reimbursement be permitted to reimburse itself for any Delinquency Advance such unreimbursed Monthly Advances or unreimbursed Servicing Advance made by an Advancing Person Advances under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.095.04(ii), but instead the Servicer shall remit include such amounts in the amounts relating to Advances applicable remittance to the Indenture Trustee to the extent of amounts on deposit in the monthly remittance made to Principal and Interest Account on the Trustee on a Monthly Remittance Date in accordance with this Agreementrelated Determination Date. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Indenture Trustee is hereby authorized to pay to the an Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Monthly Advances and Servicing Advances from the Certificate Note Distribution Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Monthly Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be5.04(ii), had the Servicer itself funded made such Delinquency Monthly Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Afc Mortgage Loan Asset Backed Notes Series 2000-1)
Advance Facility. (a) The Servicer is hereby authorized to enter into a any facility (an “Advance Facility”) with any Person (any such Person, an "Advance Facility Counterparty") which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign sell its rights to be reimbursed receive reimbursement of Advances pursuant to this Agreement ("Advance Reimbursement Rights") pursuant to credit facilities, repurchase facilities, or similar facilities providing liquidity for Delinquency Advances and/or Servicing the funding of Advances, directly including facilities providing that such Advance Facility Counterparty may make all or indirectlya portion of the Advances (any such facility, to an Advancing Person"Advance Facility"), although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation 's obligations to fund such Delinquency Advances and/or Servicing Advances. If so required pursuant to the Servicer enters into terms of an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in Advance Facility Counterparty makes all or a portion of any Advance and the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance Counterparty and the Servicer provides provide the Trustee with an Officer’s Certificate notice acknowledged by the Servicer that such Advancing Person Advance Facility Counterparty is entitled to reimbursement, such Advancing Person Advance Facility Counterparty shall be entitled to receive reimbursement pursuant to this Agreement for such amount to the extent provided in Section 8.29(c)provided. Such Officer’s Certificate notice from the Advance Facility Counterparty and the Servicer must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the reimbursement and must specify which Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trusteereimbursed. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided Advance Facility Counterparty's statement with respect to the amount of any reimbursement pursuant to this Section 8.293.20 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 Advancing Person Advance Facility Counterparty whose obligations hereunder are limited to the funding making of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer Subservicer under this Agreement.
(b) None If so required pursuant to the terms of the Depositor or the Trustee shall, as a result of the existence of any an Advance Facility, have any additional duty or liability with respect the Servicer may direct, and if so directed the Trustee is hereby authorized to and shall pay to the calculation Advance Facility Counterparty (i) reimbursements for Advances; and (ii) all or payment of any reimbursement for Delinquency Advances or Servicing Advances, nor, as a result such portion of the existence of any Servicing Fee as may be so specified in the Advance Facility, shall that would otherwise be payable to the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received Servicer pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Servicing Agreement.
(c) If an Advance Facility is entered into, and if Upon request of the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as agrees to amounts advanced byexecute such acknowledgments, pledged or assigned tocertificates, and reimbursed to other documents recognizing the interests of any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors Advance Facility Counterparty in such information.
(g) Any amendment Advance Reimbursement Rights and Servicing Fees as the Servicer may cause to be made subject to Advance Facilities pursuant to this Section 8.29 or to any 3.20, and such other provision of this Agreement that documents in connection with such Advance Facilities as may be necessary or appropriate reasonably requested from time to effect the terms of an time by any Advance Facility as Counterparty. The implementation of the arrangement described generally in this Section 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without shall not require the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by Certificateholders or the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing PersonTrustee.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Saxon Asset Securities Trust 2002-2)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to may fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to Trust under this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing PersonAgreement, although no such Advance Facility facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Serviceracknowledgment, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c8.29(b). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive request reimbursement from the Trustee, rather than the Servicer, or proof of an Event of Default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the payment of reimbursement for Delinquency Advances or Servicing Advances, except Advances to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a)the Servicer’s Assignee. The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner Servicer and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, Trustee or any successor Servicer or any OwnerServicer, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Advancing Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement be permitted to reimburse itself for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.098.09 prior to the remittance to the Trust, but instead the Servicer shall remit the such amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreementthe documentation establishing the Advance Facility to the Trustee. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall Trustee is hereby authorized to pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a)Person, reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance. The Trustee is hereby authorized to pay directly to the Advancing Person such portion of the Servicing Fee as the parties to any advancing facility agree in writing.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c)Agreement; and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Chec Funding LLC Centex Home Equity Loan Trust 2003-C)
Advance Facility. (a) The Servicer is hereby authorized to enter into a facility (an “Advance Facility”) with any Person which provides that such Person (an “Advancing Person”) agrees to fund some or all of the Delinquency Advances and/or Servicing Advances required to be made by the Servicer pursuant to this Agreement or that the Servicer may pledge or assign its rights to be reimbursed for Delinquency Advances and/or Servicing Advances, directly or indirectly, to an Advancing Person, although no such Advance Facility shall reduce or otherwise affect the Servicer’s obligation to fund such Delinquency Advances and/or Servicing Advances. If the Servicer enters into an Advance Facility, the Servicer and the related Advancing Person shall deliver to the Trustee at the address set forth in Section 11.19 hereof a written notice (an “Advance Facility Notice”), stating the identity of the Advancing Person. If the Servicer enters into such an Advance Facility pursuant to this Section 8.29, upon reasonable request of the Advancing Person, the Trustee shall execute a letter of acknowledgment prepared by the Servicer, confirming its receipt of notice of the existence of such Advance Facility. To the extent that an Advancing Person previously identified in the Advance Facility Notice funds any Delinquency Advance or any Servicing Advance and the Servicer provides the 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 extent provided in Section 8.29(c). Such Officer’s Certificate must specify the amount of the reimbursement, the remittance date, the written payment instructions for the Advancing Person, the Section of this Agreement that permits the applicable Delinquency Advance or Servicing Advance to be reimbursed and either the section(s) of the Advance Facility that entitle the Advancing Person to receive reimbursement from the Trustee, rather than the Servicer, or proof of an Event event of Default default by the Servicer under the Advance Facility entitling the Advancing Person to reimbursement from the Trustee. The Trustee shall have no duty or liability with respect to any calculation of any reimbursement to be paid to an Advancing Person and shall be entitled to conclusively rely without independent investigation on the Officer’s Certificate provided pursuant to this Section 8.29. An Advancing Person whose obligations hereunder are limited to the funding of Delinquency Advances and/or Servicing Advances, or who merely receives an assignment or pledge of the Servicer’s rights to be reimbursed for Delinquency Advances and/or Servicing Advances, shall not be required to meet the qualifications of the Servicer or any Sub-Servicer and will not be deemed to be a Sub-Servicer under this Agreement.
(b) None of the Depositor or 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 reimbursement for Delinquency Advances or Servicing Advances, nor, as a result of the existence of any Advance Facility, shall the Depositor or the Trustee have any additional responsibility to track or monitor the administration of the Advance Facility or the reimbursement for Delinquency Advances or Servicing Advances, except to remit reimbursements in accordance with payment instructions received pursuant to Section 8.29(a). The Servicer shall indemnify the Depositor, the Trustee, any successor Servicer, any Owner and the Trust for any claim, loss, liability or damage 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 the gross negligence, recklessness or willful misconduct on the part of the Depositor, the Trustee, any successor Servicer or any Owner, as the case may be, or failure by the successor Servicer or the Trustee, as the case may be, 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, as the case may be, and the passage of any applicable cure or grace period, such that a Servicer Termination Event under this Agreement occurs or such entity is subject to termination for cause under this Agreement.
(c) If an Advance Facility is entered into, and if the Servicer so notifies the Trustee, then the Servicer shall not seek reimbursement for any Delinquency Advance or Servicing Advance made by an Advancing Person under Section 7.03(b) clause C.29, Section 8.08(d)(D) and (E) and Section 8.09, but instead the Servicer shall remit the amounts relating to Advances to the Trustee in the monthly remittance made to the Trustee on a Monthly Remittance Date in accordance with this Agreement. The Trustee, upon its receipt of an Officer’s Certificate in accordance with Section 8.29 hereof, shall pay to the Advancing Person or to a trustee, agent or custodian designated in the Officer’s Certificate specified in Section 8.29(a), reimbursements for Delinquency Advances and Servicing Advances from the Certificate Account to the same extent the Servicer would have been permitted to reimburse itself from the Principal and Interest Account for such Delinquency Advances and/or Servicing Advances in accordance with Section 7.03(b) clause C.29, Sections 8.08(d)(D) and (E) and Section 8.09, as the case may be, had the Servicer itself funded such Delinquency Advance or Servicing Advance.
(d) All Delinquency Advances and Servicing Advances made pursuant to the terms of this Agreement shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO) basis, such that an advance made earlier in time with respect to any Home Equity Loan shall be reimbursed to the Servicer who made that advance, before reimbursement of an advance made later in time with respect to that Home Equity Loan, and a predecessor Servicer’s advances with respect to any particular Home Equity Loan shall be reimbursed before reimbursement of a successor Servicer’s advances with respect to such Home Equity Loan.
(e) In making its determination that any Arrearages, Delinquency Advance or Servicing Advance theretofore made has become a Nonrecoverable Advance, the Servicer shall apply the same criteria in making such determination regardless of whether such Arrearages, Delinquency Advance or Servicing Advance shall have been made by the Servicer or any predecessor Servicer.
(f) The Servicer shall maintain and provide to any successor Servicer and, upon request, the Trustee a detailed accounting on a loan-by-loan basis as to amounts advanced by, pledged or assigned to, and reimbursed to any Advancing Person. The successor Servicer shall be entitled to rely on any such information provided by the predecessor Servicer, and the successor Servicer shall not be liable for any errors in such information.
(g) Any amendment to this Section 8.29 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 8.29, including amendments to add provisions relating to a successor Servicer, may be entered into by the Depositor, the Sellers, the Trustee and the Servicer without the consent of any Certificateholder, provided that such amendment complies with Section 11.14. All reasonable costs and expenses (including attorneys’ fees) of each party hereto of any such amendment shall be borne solely by the Servicer. The parties hereto hereby acknowledge and agree that: (a) the Delinquency 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 Delinquency 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, separately obligated or liable to repay any Delinquency Advances and/or Servicing Advances financed by the Advancing Person; (b) the Servicer will be responsible for remitting to the Advancing Person the applicable amounts collected by it as reimbursement for Delinquency Advances and/or Servicing Advances funded by the Advancing Person, subject to the provisions of this Agreement and except to the extent an election is made to remit all such reimbursements to the Trustee as described in Section 8.29(c); and (c) the Trustee shall not have any responsibility to track or monitor the administration of the financing arrangement between the Servicer and any Advancing Person.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Nationstar Home Equity Loan Trust 2007-A)