Appointment of the Master Servicer. (a) agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof. (b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c). (c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force. (d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement. (e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party. (f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Bcap LLC), Pooling and Servicing Agreement (Securitized Asset Backed Receivables LLC)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Nabors (in accordance with this Section 9.01) of the designation of a new Master Servicer, Nabors is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Nabors or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Nabors agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Nabors shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Nabors acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Nabors’ agreement to act as Master Servicer hereunder. Accordingly, Nabors agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers Agents.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [obligations hereunder to any subservicer (each a “Sub-Servicer”) and the Certificate Insurer] performance of such duties and obligations by the Sub-Servicer shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, be deemed performance thereof by the Master Servicer; provided, that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Nabors Industries LTD), Receivables Purchase Agreement (Nabors Industries LTD)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Xxxxxx (in accordance with this Section 9.01) of the designation of a new Master Servicer, Xxxxxx is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Xxxxxx or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Xxxxxx agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Xxxxxx shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Xxxxxx acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Xxxxxx’ agreement to act as Master Servicer hereunder. Accordingly, Xxxxxx agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers Agents.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [obligations hereunder to any subservicer (each a “Sub-Servicer”) and the Certificate Insurer] performance of such duties and obligations by the Sub-Servicer shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, be deemed performance thereof by the Master Servicer; provided, that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Nabors Industries LTD), Receivables Purchase Agreement (Nabors Industries LTD)
Appointment of the Master Servicer. (a) agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 20020__ - _ REMIC formed hereunder shall constitute, and that the affairs of the 20020__ - _ REMIC shall be conducted so as to qualify it as, a "“real estate mortgage investment conduit" ” ("“REMIC"”) as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's ’s control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 20020__ - _ REMIC or (2) result in the imposition on the 20020__ - _ REMIC or the Trust Fund of a tax on "“prohibited transactions" ” (either clause (1) or (2) shall be an "“Adverse REMIC Event"”); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) ____% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "“qualified mortgages" ” as defined in Section 860G(a)(3) of the Code and "“permitted investments" ” as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Ortho (in accordance with this Section 9.01) of the designation of a new Master Servicer, Ortho is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Ortho or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Ortho agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Ortho shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Ortho acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Ortho’s agreement to act as Master Servicer hereunder. Accordingly, Ortho agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers Agents.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [obligations hereunder to any subservicer (each a “Sub-Servicer”) and the Certificate Insurer] performance of such duties and obligations by the Sub-Servicer shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, be deemed performance thereof by the Master Servicer; provided, that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Ortho Clinical Diagnostics Holdings PLC)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a “credit score” from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer’s normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred by The Master Servicer may perform rate modifications and substitute collateral in accordance with the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Servicer’s customary servicing practices. The Master Servicer to may, without prior approval from any Person, increase the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of Credit Limit on any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the 200_ - _ REMIC formed hereunder shall constituteTrust, and that at the affairs Repurchase Price, which are found to be in breach of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan that adjusts in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer’s normal servicing practices, and shall provide the related Mortgagor, the Issuer and the Indenture Trustee with notice of the Trusteenew published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof7.02. The Master Servicer shall, upon request of the Indenture Trustee but and at the expense of the Master Servicer, deliver to the Indenture Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer Servicer, and shall otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming partyPerson.
(fd) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee by the Closing Date, which list may, may from time to time, time be amended, modified or supplemented by the subsequent delivery to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Irwin Home Equity Loan Trust 2005-1)
Appointment of the Master Servicer. (a) agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall master service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, Servicer may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Certificateholders and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish execute for the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and Mortgage Loan, the Mortgage Loan secured by Monthly Payments on the Mortgage Note and Mortgage Loan or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)5.04.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(ed) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.235.24, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.235.24, the Trustee or its designee approved by the Certificate Insurer shall, within a period (which approval shall not to exceed 90 days, be unreasonably withheld) shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 7.02 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(e) If the Mortgage relating to a Mortgage Loan did not have a lien senior on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may consent to the refinancing of such senior lien; provided that (i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than the Combined Loan-to-Value Ratio prior to such refinancing and (ii) the interest rate for the loan evidencing the refinanced senior lien on the date of such refinancing is no higher than the interest rate on the loan evidencing the existing senior lien immediately prior to the date of such refinancing.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Appointment of the Master Servicer. (a) Irwin Union Bank and Trust Company agrees to act as the Master Servicer Servxxxx and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as reasonably requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer's normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred With respect to Mortgage Loans that have not come into default and that constitute not more than 5% (by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount Principal Balance) of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this AgreementLoans, the Master Servicer shall at all times service may (i) permit an increase or decrease of up to 100 basis points in the Mortgage Interest Rate of a Mortgage Loan and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer's customary servicing practices. With respect to Mortgage Loans that have come into and continue in default and that constitute not more than 5% (by Principal Balance) of the Mortgage Loans, the Master Servicer may (i) permit any increase or decrease in the Mortgage Interest Rate of a Mortgage Loan in such Group and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer's customary servicing practices. The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the scope of its duties more specifically set forth herein that would (1) result Trust at the Repurchase Price in a taxable event cases where Mortgage Loans are found to the Holders be in breach of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan with an adjustable Mortgage Interest Rate in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer's normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee with notice of the Trusteenew published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party7.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, and the Enhancer, in the case of the Mortgage Loans assigned to Group I, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a “credit score” from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer’s normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred by With respect to the Mortgage Loans in Group I and so long as the Enhancer has rights pursuant to Section 8.11 of this Agreement, the Master Servicer may modify the Mortgage Interest Rate, in effectuating accordance with the timely Master Servicer’s customary servicing practices, up to 100 basis points on a Mortgage Loan for which the Mortgagor is not in default with respect to the payment of taxes and assessments on the property securing all or any portion of a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permitMonthly Payment; provided, however, that the addition aggregate Principal Balances of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable Loans in Group I modified by the Master Servicer pursuant to this sentence shall not exceed 1% of the Initial Aggregate Principal Balance of the Mortgage Loans in Group I, without the prior written consent of the Enhancer. In addition, with respect to the Mortgage Loans in Group I and subject to the prior written consent of the Enhancer as long as the Enhancer’s rights under Section 5.4. Notwithstanding any other provision 8.11 of this AgreementAgreement have not terminated, the Master Servicer shall at all times service may allow the substitution of collateral with respect to any such Mortgage Loan in accordance with the Master Servicer’s customary servicing practices. With respect to the Mortgage Loans in Group II, and, to the extent the Enhancer’s rights under Section 8.11 of this Agreement have terminated, the Mortgage Loans in Group I, the Master Servicer may perform rate modifications and substitute collateral in accordance with the Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the 200_ - _ REMIC formed hereunder shall constituteTrust, and that at the affairs Repurchase Price, which are found to be in breach of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan that adjusts in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer’s normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee and, in the case of the TrusteeMortgage Loans assigned to Group I, the Enhancer with notice of the new published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof7.02. The Master Servicer shall, upon request of the Indenture Trustee but and at the expense of the Master Servicer, deliver to the Indenture Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer Servicer, and shall otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming partyPerson.
(fd) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee by the Closing Date, which list may, may from time to time, time be amended, modified or supplemented by the subsequent delivery to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Irwin Home Equity Loan Trust 2004-1)
Appointment of the Master Servicer. (a) Advanta Mortgage Corp. USA agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Certificateholders and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish shall, upon written request, execute for the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. The Master Servicer shall make Mortgage Interest Rate and Monthly Payment adjustments on each Rate Adjustment Date in compliance with applicable regulatory adjustable mortgage loan requirements and the Mortgage Notes with respect to each Group I Loan. The Master Servicer shall establish procedures to monitor the Rate Adjustment Dates and the Index in order to assure that it uses the correct Index in determining an interest rate change, and it will comply with those procedures. In the event the Index is no longer available, the Master Servicer shall choose a new comparable Index in accordance with the provisions hereof, of the applicable Mortgage Note and of Accepted Servicing Practices, and shall provide the Mortgagor and the Trustee with notice of the new Index sufficient under law and the Mortgage Loan Documents. The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the Mortgage Loan Documents regarding such Mortgage Interest Rate adjustments and payment adjustments. Each adjustment in the Mortgage Interest Rate shall result in an adjustment to the related Monthly Payment. If the Master Servicer fails to make a timely Mortgage Interest Rate or Monthly Payment adjustment, the Master Servicer shall use its own funds to satisfy any shortage in the Mortgagor's remittance so long as such shortage shall continue; any such amount paid by the Master Servicer shall be reimbursable to it from any subsequent amounts collected on account of the related Mortgage Loan with respect to such adjustments. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedPROVIDED, howeverHOWEVER, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and Mortgage Loan, the Mortgage Loan secured by Monthly Payments on the Mortgage Note and Mortgage Loan or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)5.04.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(ed) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.235.24, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.235.24, the Trustee or its designee approved by the Certificate Insurer shall, within a period (which approval shall not to exceed 90 days, be unreasonably withheld) shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 7.02 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans Loans, any other instruments or documents as the Trustee may reasonably request to effect the efficient transfer of the duties of the Master Servicer and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(e) If the Mortgage relating to a Mortgage Loan did not have a lien senior on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as reasonably requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer’s normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred With respect to Mortgage Loans that have not come into default and that constitute not more than 5% (by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount Principal Balance) of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this AgreementLoans, the Master Servicer shall at all times service may (i) permit an increase or decrease of up to 100 basis points in the Mortgage Loans Interest Rate of a Mortgage Loan and (ii) allow the substitution of collateral for a Mortgage Loan, in a manner consistent both cases, in accordance with the provisions Master Servicer’s customary servicing practices. With respect to Mortgage Loans that have come into and continue in default and that constitute not more than 5% (by Principal Balance) of Sections 5.1(bthe Mortgage Loans, the Master Servicer may (i) permit any increase or decrease in the Mortgage Interest Rate of a Mortgage Loan and 5.1(c)(ii) allow the substitution of collateral for a Mortgage Loan, in both cases, in accordance with the Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the Trust at the Repurchase Price in cases where Mortgage Loans are found to be in breach of the related purchase agreement that the Master Servicer has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the Master Servicer, and of any successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or general agent.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof7.02. The Master Servicer shall, upon request of the Indenture Trustee but and at the expense of the Master Servicer, deliver to the Indenture Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer Servicer, and shall otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming partyPerson.
(fd) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee by the Closing Date, which list may, may from time to time, time be amended, modified or supplemented by the subsequent delivery to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee of any superseding list of Servicing Officers.
(e) The Master Servicer and the Depositor hereby agree that all of the servicing duties and obligations of Xxxxx Union Bank and Trust Company under the Mortgage Loan Purchase and Servicing Agreement are hereby superseded in their entirety by the servicing duties and obligations set forth in this Sale and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Irwin Whole Loan Home Equity Trust 2005-A)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Moog (in accordance with this Section 9.01) of the designation of a new Master Servicer following the occurrence of an Event of Termination, Moog is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Moog or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Xxxx agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Moog shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Moog acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Moog’s agreement to act as Master Servicer hereunder. Accordingly, Xxxx agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authorityobligations hereunder to any subservicer (each a “Sub-Servicer”); provided, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicerthat, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain primarily liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occurdelegation. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.758444419 21691544 79
Appears in 1 contract
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Purchaser gives notice to StarTek (in accordance with this Section 9.01) of the designation of a new Master Servicer, StarTek is hereby designated as, and hereby agrees to perform all servicing the duties under and obligations of, the Master Servicer pursuant to the terms hereof. The Purchaser may, at any time during the continuation of an Event of Termination caused by a breach of this Agreement subject by the Master Servicer, in its Permitted Discretion, designate as Master Servicer any Person (including itself) to succeed StarTek or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, StarTek agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Purchaser reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and StarTek shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables.
(c) StarTek acknowledges that, in making its decision to execute and deliver this Agreement, the Purchaser has relied on StarTek’s agreement to act as Master Servicer hereunder. Accordingly, StarTek agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Purchaser.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authorityobligations hereunder to any subservicer (each a “Sub-Servicer”); provided, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicerthat, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Purchaser may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of StarTek, the Purchaser shall have no liability hereunder for any action taken by it consented in accordance with writing in advance to such delegation. The Purchaser hereby consents to the written instructions delegation to Finacity Corporation of the Trustee. In addition, prior to taking any action some or all of its reporting obligations with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcePool Receivables.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] Insurer and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Insurer and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ 1999-1 REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ 1999-1 REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ 1999-1 REMIC or (2) result in the imposition on the 200_ - _ 1999-1 REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____0.25% and (ii) __5% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the sentence), the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] Insurer of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as reasonably requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer’s normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred With respect to Mortgage Loans that have not come into default and that constitute not more than 5% (by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount Principal Balance) of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this AgreementLoans, the Master Servicer shall at all times service may (i) permit an increase or decrease of up to 100 basis points in the Mortgage Interest Rate of a Mortgage Loan and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer’s customary servicing practices. With respect to Mortgage Loans that have come into and continue in default and that constitute not more than 5% (by Principal Balance) of the Mortgage Loans, the Master Servicer may (i) permit any increase or decrease in the Mortgage Interest Rate of a Mortgage Loan in such Group and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the 200_ - _ REMIC formed hereunder shall constitute, and that Trust at the affairs Repurchase Price in cases where Mortgage Loans are found to be in breach of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan with an adjustable Mortgage Interest Rate in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer’s normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee with notice of the Trusteenew published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof7.02. The Master Servicer shall, upon request of the Indenture Trustee but and at the expense of the Master Servicer, deliver to the Indenture Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer Servicer, and shall otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming partyPerson.
(fd) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee by the Closing Date, which list may, may from time to time, time be amended, modified or supplemented by the subsequent delivery to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee of any superseding list of Servicing Officers.
(e) The Master Servicer and the Depositor hereby agree that all of the servicing duties and obligations of Xxxxx Union Bank and Trust Company under the Mortgage Loan Purchase and Servicing Agreements are hereby superseded in their entirety by the servicing duties and obligations set forth in this Sale and Servicing Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Irwin Whole Loan Home Equity Trust 2004 A)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, and the Enhancer, in the case of the Mortgage Loans assigned to Group I, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit D hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as reasonably requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer (i) shall employ procedures consistent with Accepted Servicing Practices the Master Servicer's normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement, and (ii) may take reasonable actions to encourage or effect the termination of Loan Agreements that have not had an outstanding Principal Balance for at least 6 months. Costs incurred With respect to the Mortgage Loans in Group I and so long as the Enhancer has rights pursuant to Section 8.11 of this Agreement, the Master Servicer, in accordance with its customary servicing practices, may make an increase or decrease of up to 100 basis points in the Mortgage Interest Rate of a Mortgage Loan for which the Mortgagor is not in default with respect to the payment of all or any portion of a Monthly Payment; provided, however, that without the prior written consent of the Enhancer the aggregate Principal Balance of the Mortgage Loans in Group I so modified by the Master Servicer pursuant to this sentence shall not exceed 1% of the Initial Aggregate Principal Balance of Group I. In addition, with respect to the Mortgage Loans in effectuating Group I and subject to the timely payment prior written consent of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by Enhancer so long as the Enhancer has rights pursuant to Section 8.11 of this Agreement, the Master Servicer may allow the substitution of collateral with respect to any such Mortgage Loan in accordance with its customary servicing practices. With respect to the amount owing Mortgage Loans in Group II and, to the extent the Enhancer's rights under such Section 8.11 of this Agreement have terminated, the Mortgage Note where Loans in Group I, the terms of such Mortgage Note so permitMaster Servicer may perform rate modifications and substitute collateral in accordance with the Master Servicer's customary servicing practices; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount aggregate Principal Balance of the Mortgage Note Loans in Group II and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable Group I for which rate modifications have been performed by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision this sentence (and the preceding paragraph in the case of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in Group I) shall not exceed 5% of the Initial Aggregate Principal Balance of Group II and Group I, respectively. The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the scope of its duties more specifically set forth herein that would (1) result Trust at the Repurchase Price in a taxable event cases where Mortgage Loans are found to the Holders be in breach of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan with an adjustable Mortgage Interest Rate in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer's normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee and, in the case of the TrusteeMortgage Loans assigned to Group I, the Enhancer with notice of the new published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party7.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Appointment of the Master Servicer. (a) [_____________________________] agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Certificateholders and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish shall, upon written request, execute for the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. The Master Servicer shall make Mortgage Interest Rate and Monthly Payment adjustments on each Rate Adjustment Date in compliance with applicable regulatory adjustable mortgage loan requirements and the Mortgage Notes with respect to each Group I Loan. The Master Servicer shall establish procedures to monitor the Rate Adjustment Dates and the Index in order to assure that it uses the correct Index in determining an interest rate change, and it will comply with those procedures. In the event the Index is no longer available, the Master Servicer shall choose a new comparable Index in accordance with the provisions hereof, of the applicable Mortgage Note and of Accepted Servicing Practices, and shall provide the Mortgagor and the Trustee with notice of the new Index sufficient under law and the Mortgage Loan Documents. The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the Mortgage Loan Documents regarding such Mortgage Interest Rate adjustments and payment adjustments. Each adjustment in the Mortgage Interest Rate shall result in an adjustment to the related Monthly Payment. If the Master Servicer fails to make a timely Mortgage Interest Rate or Monthly Payment adjustment, the Master Servicer shall use its own funds to satisfy any shortage in the Mortgagor's remittance so long as such shortage shall continue; any such amount paid by the Master 56 Servicer shall be reimbursable to it from any subsequent amounts collected on account of the related Mortgage Loan with respect to such adjustments. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedPROVIDED, howeverHOWEVER, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and Mortgage Loan, the Mortgage Loan secured by Monthly Payments on the Mortgage Note and Mortgage Loan or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)5.04.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(ed) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.235.24, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.235.24, the Trustee or its designee approved by the Certificate Insurer shall, within a period (which approval shall not to exceed 90 days, be unreasonably withheld) shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 7.02 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans Loans, any other instruments or documents as the Trustee may reasonably request to effect the efficient transfer of the duties of the Master Servicer and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(e) If the Mortgage relating to a Mortgage Loan did not have a lien senior on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may consent to the refinancing of such senior lien; PROVIDED that (i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than the Combined Loan-to Value Ratio prior to such refinancing and (ii) the interest rate for the loan evidencing the refinanced senior lien on the date of such refinancing is no higher than the interest rate on the loan evidencing the existing senior lien immediately prior to the date of such refinancing.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Appointment of the Master Servicer. (a) Irwin Union Bank and Trust Company agrees to act as the Master Servicer and Servicxx xxd to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of the Trustee [this Agreement and the Certificate Insurer] as shall be normal and usual in its general mortgage servicing activities, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Master Servicer a limited power of attorney substantially in the form of Exhibit B hereto. In servicing and administering the Mortgage Loans, the Master Servicer (i) shall employ procedures consistent with Accepted Servicing Practices the Master Servicer's normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement, and (ii) may take reasonable actions to encourage or effect the termination of Loan Agreements that have not had an outstanding Principal Balance for at least 6 months. Costs The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the Master Servicer's customary servicing practices. The relationship of the Master Servicer, and of any successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or general agent. In connection with the Mortgage Loans assigned to Group III, the Master Servicer shall make any Mortgage Interest Rate adjustments on each Interest Adjustment Date in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to monitor the Interest Adjustment Dates in order to ensure that it uses a published interest rate in determining an interest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall choose a new comparable published interest rate in accordance with the provisions hereof, the related Loan Agreements and the Master Servicer's normal servicing practices, and shall provide the related Mortgagor, the Issuer, and the Indenture Trustee with notice of the new published interest rate sufficient under law and the related Loan Agreement. The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to make a timely Mortgage Interest Rate adjustment in accordance with the terms of the related Loan Agreement, the Master Servicer shall use its own funds to satisfy any shortfall in Collections resulting therefrom for so long as such shortfall shall continue. Any such amount paid by the Master Servicer shall be reimbursable to it from any subsequent amounts collected on account of the related Mortgage Loan with respect to such adjustments. Any expenses incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note Mortgaged Property and foreclosure costs may be added by the Master Servicer to the amount owing under such in respect of the related Mortgage Note Loan where the terms of such the related Mortgage Note Documents so permit; provided, however, that the addition of any such cost expenses shall not be taken into account for purposes of calculating the principal amount Principal Balance of the Mortgage Note and the such Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholdersthe Securityholders. Such costs expenses shall be recoverable by the Master Servicer pursuant to Section 5.43.04(c). Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)this paragraph.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party7.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Sec Inc Irwin Home Eq Lo Tr 2001-2)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to MSC (in accordance with this Section 9.01) of the designation of a new Master Servicer following the occurrence of an Amortization Event, MSC is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Amortization Event, the Administrative Agent may and shall (at the direction of the Purchasers) designate as Master Servicer any Person (including itself) to succeed MSC or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, MSC agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and MSC shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) MSC acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on MSC’s agreement to act as Master Servicer hereunder. Accordingly, MSC agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Purchasers.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authorityobligations hereunder to any subservicer (each, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master a “Sub-Servicer”); provided that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain primarily liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior provide appropriate notice to taking any action with respect to the Trust Fund that each such Sub-Servicer) and (v) if such Sub-Servicer is not expressly permitted under an Affiliate of MSC, the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (MSC Industrial Direct Co Inc)
Appointment of the Master Servicer. (a) Advanta Mortgage Corp. USA agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Certificateholders and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish shall, upon written request, execute for the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. The Master Servicer shall make Mortgage Interest Rate and Monthly Payment adjustments on each Rate Adjustment Date in compliance with applicable regulatory adjustable mortgage loan requirements and the Mortgage Notes with respect to each Group I Loan. The Master Servicer shall establish procedures to monitor the Rate Adjustment Dates and the Index in order to assure that it uses the correct Index in determining an interest rate change, and it will comply with those procedures. In the event the Index is no longer available, the Master Servicer shall choose a new comparable Index in accordance with the provisions hereof, of the applicable Mortgage Note and of Accepted Servicing Practices, and shall provide the Mortgagor and the Trustee with notice of the new Index sufficient under law and the Mortgage Loan Documents. The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the Mortgage Loan Documents regarding such Mortgage Interest Rate adjustments and payment adjustments. Each adjustment in the Mortgage Interest Rate shall result in an adjustment to the related Monthly Payment. If the Master Servicer fails to make a timely Mortgage Interest Rate or Monthly Payment adjustment, the Master Servicer shall use its own funds to satisfy any shortage in the Mortgagor's remittance so long as such shortage shall continue; any such amount paid by the Master Servicer shall be reimbursable to it from any subsequent amounts collected on account of the related Mortgage Loan with respect to such adjustments. 57 Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedPROVIDED, howeverHOWEVER, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and Mortgage Loan, the Mortgage Loan secured by Monthly Payments on the Mortgage Note and Mortgage Loan or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)5.04.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(ed) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.235.24, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.235.24, the Trustee or its designee approved by the Certificate Insurer shall, within a period (which approval shall not to exceed 90 days, be unreasonably withheld) shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 7.02 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans Loans, any other instruments or documents as the Trustee may reasonably request to effect the efficient transfer of the duties of the Master Servicer and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(e) If the Mortgage relating to a Mortgage Loan did not have a lien senior on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property. If the Mortgage relating to a Mortgage Loan had a lien senior to the Mortgage Loan on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may consent to the refinancing of such senior lien; PROVIDED that (i) the resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than the Combined Loan-toValue Ratio prior to such refinancing and (ii) the interest rate for the loan evidencing the refinanced senior lien on the date of such refinancing is no higher than the interest rate on the loan evidencing the existing senior lien immediately prior to the date of such refinancing.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
Appointment of the Master Servicer. (a) agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders [and the Certificate Insurer], in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee [or its designee approved by the Certificate Insurer Insurer] shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Hsi Asset Securitization Corp)
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, and the Enhancer, in the case of the Mortgage Loans assigned to Group I, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a “credit score” from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than 50 original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer (i) shall employ procedures consistent with Accepted Servicing Practices the Master Servicer’s normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement, and (ii) may take reasonable actions to encourage or effect the termination of Loan Agreements that have not had an outstanding Principal Balance for at least 6 months. Costs incurred by With respect to the Mortgage Loans in Group I and so long as the Enhancer has rights pursuant to Section 8.11 of this Agreement, the Master Servicer may modify the Mortgage Interest Rate, in effectuating accordance with the timely Master Servicer’s customary servicing practices, up to 100 basis points on a Mortgage Loan for which the Mortgagor is not in default with respect to the payment of taxes and assessments on the property securing all or any portion of a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permitMonthly Payment; provided, however, that the addition aggregate Principal Balances of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable Loans in Group I modified by the Master Servicer pursuant to this sentence shall not exceed 1% of the Initial Aggregate Principal Balance of the Mortgage Loans in Group I, without the prior written consent of the Enhancer. In addition, with respect to the Mortgage Loans in Group I and subject to the prior written consent of the Enhancer as long as the Enhancer’s rights under Section 5.4. Notwithstanding any other provision 8.11 of this AgreementAgreement have not terminated, the Master Servicer shall at all times service may allow the substitution of collateral with respect to any such Mortgage Loan in accordance with the Master Servicer’s customary servicing practices. With respect to the Mortgage Loans in Group II and, to the extent the Enhancer’s rights under Section 8.11 of this Agreement have terminated, the Mortgage Loans in Group I, the Master Servicer may perform rate modifications and substitute collateral in accordance with the Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that Master Servicer’s customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the 200_ - _ REMIC formed hereunder shall constituteTrust, and that at the affairs Repurchase Price, which are found to be in breach of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan that adjusts in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer’s normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee and, in the case of the TrusteeMortgage Loans assigned to Group I, the Enhancer with notice of the new published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof7.02. The Master Servicer shall, upon request of the Indenture Trustee but and at the expense of the Master Servicer, deliver to the Indenture Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer Servicer, and shall otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming partyPerson.
(fd) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee by the Closing Date, which list may, may from time to time, time be amended, modified or supplemented by the subsequent delivery to the Trustee [Issuer and the Certificate Insurer] Indenture Trustee of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Xxxxxxxxx (in accordance with this Section 9.01) of the designation of a new Master Servicer, Xxxxxxxxx is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Xxxxxxxxx or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Xxxxxxxxx agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Xxxxxxxxx shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Xxxxxxxxx acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Wolverine’s agreement to act as Master Servicer hereunder. Accordingly, Xxxxxxxxx agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers Agents.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [obligations hereunder to any subservicer (each a “Sub-Servicer”) and the Certificate Insurer] performance of such duties and obligations by the Sub-Servicer shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, be deemed performance thereof by the Master Servicer; provided, that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreementdelegation.
(e) On Notwithstanding anything else contained in this Agreement or any other Transaction Document: (i) the Master Servicer or any Sub-Servicer shall not (and after such time as the Trustee receives the resignation ofshall have no authority to) contract for, or notice of conclude contracts in the removal name of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23Seller, the Trustee Administrative Agent or its designee approved by any other Secured Party in connection with any Receivables (including, without limitation, compromising or modifying the Certificate Insurer shall, within a period not Receivables) in Canada; (ii) to exceed 90 days, assume all of the rights and extent any duties or obligations of the Master Servicer, subject to Section 7.2 hereof. The Servicer involve or require the Master Servicer shallto contract for, upon request or conclude a contract in the name of the Trustee but at Seller, the expense Administrative Agent or any other Secured Party, such servicing responsibility shall be fulfilled solely by an affiliate of the Master Servicer, deliver to Servicer that is not resident in Canada and does not have a permanent establishment in Canada for purposes of the Trustee all documents Income Tax Act (Canada) (and records relating to the Mortgage Loans and an accounting of amounts collected and held not by the Master Servicer Servicer) and otherwise use its best efforts such affiliate is authorized to effect the orderly take such action, but only from a place of business outside of Canada, and efficient transfer of servicing rights and obligations to the assuming party.
extent that any duties or obligations of any Sub-Servicer involve or require the Sub-Servicer to contract for, or conclude a contract in the name of the Seller, the Administrative Agent or any other Secured Party, such servicing responsibilities shall be fulfilled only from a place of business outside of Canada; and (fiii) The Master Servicer shall deliver not, directly or indirectly, assign, delegate or subcontract any servicing responsibility under this Agreement to any person which is resident in Canada or has a list permanent establishment in Canada for purposes of Servicing Officers the Income Tax Act (Canada), except upon written consent (which consent shall not be unreasonably withheld, conditioned or delayed) of the Seller or the Administrative Agent, and in any event, any such assignee, delegate or sub-contractor may only carry out any servicing responsibility that involves or requires the assignee, delegate or sub-contractor to contract for, or conclude a contract in the Trustee [name of the Seller, the Administrative Agent or any other Secured Party from a place of business outside Canada and the Certificate Insurer] by the Closing Dateshall not, which list mayin any manner whatsoever, from time to timecarry out any such assigned, be amended, modified delegated or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officerssub-contracted responsibility in Canada.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wolverine World Wide Inc /De/)
Appointment of the Master Servicer. (a) agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedPROVIDED, howeverHOWEVER, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200199_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200199_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200199_ - _ REMIC or (2) result in the imposition on the 200199_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); providedPROVIDED, howeverHOWEVER, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Painewebber Mortgage Acceptance Corporation Iv)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Moog (in accordance with this Section 9.01) of the designation of a new Master Servicer following the occurrence of an Event of Termination, Moog is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Moog or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Moog agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Moog shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Moog acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Moog’s agreement to act as Master Servicer hereunder. Accordingly, Moog agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers. 744072627 21691544 86
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authorityobligations hereunder to any subservicer (each a “Sub-Servicer”); provided, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicerthat, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain primarily liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Majority Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Appointment of the Master Servicer. (a) Advanta Mortgage Corp. USA agrees to act as the Master Servicer and to perform all servicing duties under this Agreement subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf of the Trustee [and the Certificate Insurer] and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] Certificateholders and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish shall, upon written request, execute for the Master Servicer or its Subservicers with any powers of attorney and such other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices and in a manner consistent with recovery under any insurance policy required to be maintained by the Master Servicer pursuant to this Agreement. The Master Servicer shall make Mortgage Interest Rate and Monthly Payment adjustments on each Rate Adjustment Date in compliance with applicable regulatory adjustable mortgage loan requirements and the Mortgage Notes with respect to each Group I Loan and Group II Loan. The Master Servicer shall establish procedures to monitor the Rate Adjustment Dates and the Index in order to assure that it uses the correct Index in determining an interest rate change, and it will comply with those procedures. In the event the Index is no longer available, the Master Servicer shall choose a new comparable Index in accordance with the provisions hereof, of the applicable Mortgage Note and of Accepted Servicing Practices, and shall provide the Mortgagor and the Trustee with notice of the new Index sufficient under law and the Mortgage Loan Documents. The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the Mortgage Loan Documents regarding such Mortgage Interest Rate adjustments and payment adjustments. Each adjustment in the Mortgage Interest Rate shall result in an adjustment to the related Monthly Payment. If the Master Servicer fails to make a timely Mortgage Interest Rate or Monthly Payment adjustment, the Master Servicer shall use its own funds to satisfy any shortage in the Mortgagor's remittance so long as such shortage shall continue; any such amount paid by the Master Servicer shall be reimbursable to it from any subsequent amounts collected on account of the related Mortgage Loan with respect to such adjustments. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedPROVIDED, howeverHOWEVER, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and Mortgage Loan, the Mortgage Loan secured by Monthly Payments on the Mortgage Note and Mortgage Loan or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)5.04.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(ed) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.235.24, after receipt by the Trustee [and the Certificate Insurer] Insurer of the Opinion of Counsel required pursuant to Section 5.235.24, the Trustee or its designee approved by the Certificate Insurer shall, within a period (which approval shall not to exceed 90 days, be unreasonably withheld) shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 7.02 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans Loans, any other instruments or documents as the Trustee may reasonably request to effect the efficient transfer of the duties of the Master Servicer and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(e) If the Mortgage relating to a Mortgage Loan did not have a lien senior on the related Mortgaged Property as of the Cut-Off Date, then the Master Servicer, in such capacity, may not consent to the placing of a lien senior to that of the Mortgage on the related Mortgaged Property.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] Insurer by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Southern Pacific Secured Assets Corp)
Appointment of the Master Servicer. (a) [Name of Master Servicer] agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of this Agreement and as shall be normal and usual in its general mortgage servicing activities and consistent with mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the Trustee [and same type as the Certificate Insurer] Mortgage Loans for their own accounts in the jurisdictions in which the related Mortgaged Properties are located, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer, the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. Within 30 days of the Closing Date, the Indenture Trustee shall deliver to the Master Servicer no less than [__] original limited powers of attorney substantially in the form of Exhibit C hereto. Following the Closing Date, the Indenture Trustee shall promptly deliver further powers of attorney as reasonably requested by the Master Servicer. In servicing and administering the Mortgage Loans, the Master Servicer shall employ procedures consistent with Accepted Servicing Practices the Master Servicer's normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement. Costs incurred [With respect to Mortgage Loans that have not come into default and that constitute not more than 5% (by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; provided, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount Principal Balance) of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this AgreementLoans, the Master Servicer shall at all times service may (i) permit an increase or decrease of up to 100 basis points in the Mortgage Interest Rate of a Mortgage Loan and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer's customary servicing practices. With respect to Mortgage Loans that have come into and continue in default and that constitute not more than 5% (by Principal Balance) of the Mortgage Loans, the Master Servicer may (i) permit any increase or decrease in the Mortgage Interest Rate of a Mortgage Loan in such Group and (ii) allow the substitution of collateral for a Mortgage Loan in such Group, in both cases, in accordance with the Master Servicer's customary servicing practices.] The Master Servicer may, without prior approval from any Person, increase the Credit Limit on any HELOC in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and customary servicing practices. The Master Servicer may, without prior approval from any Person, repurchase Mortgage Loans from the scope of its duties more specifically set forth herein that would (1) result Trust at the Repurchase Price in a taxable event cases where Mortgage Loans are found to the Holders be in breach of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, related purchase agreement that the Master Servicer may allow reductions has with brokers or correspondent lenders, even if such Mortgage Loans are not otherwise in breach of this Agreement. The relationship of the rate of interest on any Mortgage Loan so long as the amount Master Servicer, and of any such reduction does successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not exceed the greater that of (i) ____% and (ii) __% of the total coupon on such Mortgage Loana joint venturer, partner or general agent. The Master Servicer shall not take make any action or fail Mortgage Interest Rate adjustments on each Interest Adjustment Date for any Mortgage Loan with an adjustable Mortgage Interest Rate in compliance with applicable regulatory adjustable mortgage loan requirements and the related Loan Agreements. The Master Servicer shall establish procedures to take any action (whether or not authorized hereunder) as monitor the Interest Adjustment Dates in order to which the Trustee has advised it in writing ensure that it has received uses a published interest rate in determining an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such actioninterest rate change, and it will comply with such procedures. In the event that a published interest rate is no longer available, the Master Servicer shall have no liability hereunder for any action taken by it choose a new comparable published interest rate in accordance with the written instructions provisions hereof, the related Loan Agreements and the Master Servicer's normal servicing practices, and shall provide the related Mortgagor, the Issuer, the Indenture Trustee with notice of the Trusteenew published interest rate sufficient under law and the related Loan Agreement. In addition, prior The Master Servicer shall execute and deliver all appropriate notices required by the applicable adjustable mortgage loan laws and regulations and the related Loan Agreements regarding such adjustments. If the Master Servicer fails to taking any action make a timely Mortgage Interest Rate adjustment in accordance with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this related Loan Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts own funds to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" satisfy any shortfall in Collections resulting therefrom for so long as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Codesuch shortfall shall continue. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, Any such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee amount paid by the Master Servicer and other documents necessary or appropriate shall be reimbursable to enable it from any subsequent amounts collected on account of the Master Servicer related Mortgage Loan with respect to carry out its servicing and administrative duties under this Agreementsuch adjustments.
(ec) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party7.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Securities I LLC)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to ENS (in accordance with this Section 9.01) of the designation of a new Master Servicer following the occurrence of an Amortization Event, ENS is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence of an Amortization Event, the Administrative Agent may and shall (at the direction of the Required Purchasers) designate as Master Servicer any Person (including itself) to succeed ENS or any successor Master Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, ENS agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and ENS shall cooperate with and assist such new Master Servicer to the extent reasonably necessary. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) ENS acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on ENS’s agreement to act as Master Servicer hereunder. Accordingly, XXX agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Purchasers.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf obligations hereunder to any Originator of the Trustee [and the Certificate Insurer] and shall have full power and authorityother Person (each, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, the Master a “Sub-Servicer”); provided that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain primarily liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior provide appropriate notice to taking any action with respect to the Trust Fund that each such Sub-Servicer) and (v) if such Sub-Servicer is not expressly permitted under an Affiliate of ENS, the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [Administrative Agent and the Certificate Insurer], Purchasers shall have consented in writing, with respect writing in advance to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forcedelegation.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Appointment of the Master Servicer. (a) Xxxxx Union Bank and Trust Company agrees to act as the Master Servicer and to perform all servicing duties under this Agreement Agreement, subject to the terms hereof.
(b) The Master Servicer shall service and administer the Mortgage Loans on behalf in a manner consistent with the terms of the Trustee [this Agreement and the Certificate Insurer] as shall be normal and usual in its general mortgage servicing activities, and shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which as it may deem necessary or desirable; provided, that the Master Servicer shall at all times remain responsible to the Issuer and the Indenture Trustee, as pledgee of the Mortgage Loans, for the performance of its duties and obligations hereunder in accordance with the terms hereof. Without limiting the generality of the foregoing, the Master Servicer, in its own name or the name of a Subservicer, mayServicer shall continue, and is hereby authorized and empowered by the Trustee toIssuer and the Indenture Trustee, as pledgee of the Mortgage Loans, to execute and deliver, on behalf of itself, the Certificateholders[Issuer, the Certificate Insurer] and the Indenture Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge discharge, and all other comparable instruments, instruments with respect to the Mortgage LoansLoans and the Mortgaged Properties. The Issuer, the insurance policies and accounts related thereto Indenture Trustee and the properties subject to the Mortgages. Upon the execution and delivery of this AgreementCustodian, and from time to time as may be required thereafterapplicable, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and such or other documents (that have been prepared by the Master Servicer for execution by the Trustee) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In addition, the Master Servicer may, at its own discretion and on behalf of the Issuer, obtain credit information in the form of a "credit score" from a credit repository. On the Closing Date, the Indenture Trustee shall deliver to the Master Servicer a limited power of attorney substantially in the form of Exhibit B hereto. In servicing and administering the Mortgage Loans, the Master Servicer (i) shall employ procedures consistent with Accepted Servicing Practices the Master Servicer's normal servicing practices and in a manner consistent with recovery under any insurance policy required to be maintained by a Mortgagor pursuant to the related Mortgage Documents or by the Master Servicer pursuant to this Agreement, and (ii) may take reasonable actions to encourage or effect the termination of Loan Agreements that have not had an outstanding Principal Balance for at least 6 months. Costs The relationship of the Master Servicer, and of any successor to the Master Servicer as master servicer hereunder, to the Issuer under this Agreement is intended by the parties to be that of an independent contractor and not that of a joint venturer, partner or agent. Any expenses incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note Mortgaged Property and foreclosure costs may be added by the Master Servicer to the amount owing under such in respect of the related Mortgage Note Loan where the terms of such the related Mortgage Note Documents so permit; provided, however, that the addition of any such cost expenses shall not be taken into account for purposes of calculating the principal amount Principal Balance of the Mortgage Note and the such Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholdersthe Securityholders. Such costs expenses shall be recoverable by the Master Servicer pursuant to Section 5.43.04(c). Notwithstanding any other provision of this Agreement, the Master Servicer shall at all times service the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c)this paragraph.
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs of the 200_ - _ REMIC shall be conducted so as to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, the Master Servicer covenants and agrees that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and the scope of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions of the Trustee. In addition, prior to taking any action with respect to the Trust Fund that is not expressly permitted under the terms of this Agreement (other than interest rate modifications referred to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in force.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Owner Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to a resignation pursuant to Section 5.236.04, after receipt by the Owner Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.236.04, the Indenture Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, shall assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party7.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Asset Backed Sec Inc Irwin Home Eq Lo Tr 1999-2)
Appointment of the Master Servicer. (a) agrees The servicing, administering and collection of the Pool Receivables shall be conducted by the Person so designated from time to act time as the Master Servicer in accordance with this Section 9.01. Until the Administrative Agent gives notice to Xxxx (in accordance with this Section 9.01) of the designation of a new Master Servicer, Gray is hereby designated as, and hereby agrees to perform all servicing the duties under this Agreement subject and obligations of, the Master Servicer pursuant to the terms hereof. Upon the occurrence and continuance of an Event of Termination, the Administrative Agent may (with the consent of the Majority Purchasers) and shall (at the direction of the Majority Purchasers) designate as Master Servicer any Person (including itself) to succeed Xxxx or any successor Master Servicer (other than a Gray Competitor), on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of the Master Servicer pursuant to the terms hereof.
(b) Upon the designation of a successor Master Servicer as set forth in clause (a) above, Xxxx agrees that it will terminate its activities as Master Servicer hereunder in a manner that the Administrative Agent reasonably determines will facilitate the transition of the performance of such activities to the new Master Servicer, and Xxxx shall cooperate with and assist such new Master Servicer. Such cooperation shall include access to and transfer of records (including all Contracts) related to Pool Receivables and use by the new Master Servicer of all licenses (or the obtaining of new licenses), hardware or software necessary or reasonably desirable to collect the Pool Receivables and the Related Security.
(c) Gray acknowledges that, in making its decision to execute and deliver this Agreement, the Administrative Agent and each Purchaser have relied on Xxxx’x agreement to act as Master Servicer hereunder. Accordingly, Xxxx agrees that it will not voluntarily resign as Master Servicer without the prior written consent of the Administrative Agent and the Majority Purchasers.
(d) The Master Servicer shall service may delegate its duties and administer the Mortgage Loans on behalf of the Trustee [obligations hereunder to any subservicer (each a “Sub-Servicer”) and the Certificate Insurer] performance of such duties and obligations by the Sub-Servicer shall have full power and authority, acting alone or through one or more Subservicers, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing, be deemed performance thereof by the Master Servicer; provided, that, in its own name or the name of a Subservicer, may, and is hereby authorized and empowered by the Trustee to, execute and deliver, on behalf of itself, the Certificateholders[, the Certificate Insurer] and the Trustee or any of them, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to the Mortgage Loans, the insurance policies and accounts related thereto and the properties subject to the Mortgages. Upon the execution and delivery of this Agreement, and from time to time as may be required thereafter, the Trustee shall furnish the Master Servicer or its Subservicers with any powers of attorney and each such other documents delegation: (that have been prepared by the Master Servicer for execution by the Trusteei) as may be necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties hereunder. In servicing and administering the Mortgage Loans, the Master such Sub-Servicer shall employ procedures consistent with Accepted Servicing Practices agree in writing to perform the delegated duties and in a manner consistent with recovery under any insurance policy required to be maintained by obligations of the Master Servicer pursuant to this Agreement. Costs incurred by the Master Servicer in effectuating the timely payment of taxes and assessments on the property securing a Mortgage Note and foreclosure costs may be added by the Master Servicer to the amount owing under such Mortgage Note where the terms of such Mortgage Note so permit; providedhereof, however, that the addition of any such cost shall not be taken into account for purposes of calculating the principal amount of the Mortgage Note and the Mortgage Loan secured by the Mortgage Note or distributions to be made to Certificateholders. Such costs shall be recoverable by the Master Servicer pursuant to Section 5.4. Notwithstanding any other provision of this Agreement, (ii) the Master Servicer shall at all times service remain liable for the Mortgage Loans in a manner consistent with the provisions of Sections 5.1(b) and 5.1(c).
(c) It is intended that the 200_ - _ REMIC formed hereunder shall constitute, and that the affairs performance of the 200_ - _ REMIC duties and obligations so delegated, (iii) the Seller, the Administrative Agent and each Purchaser shall be conducted so as have the right to qualify it as, a "real estate mortgage investment conduit" ("REMIC") as defined in and in accordance with the REMIC Provisions. In furtherance of such intentions, look solely to the Master Servicer covenants and agrees for performance, (iv) the terms of any agreement with any Sub-Servicer shall provide that it shall not take any action or omit to take any action reasonably within the Master Servicer's control and Administrative Agent may terminate such agreement upon the scope termination of its duties more specifically set forth herein that would (1) result in a taxable event to the Holders of the Certificates or endanger the REMIC status of the 200_ - _ REMIC or (2) result in the imposition on the 200_ - _ REMIC or the Trust Fund of a tax on "prohibited transactions" (either clause (1) or (2) shall be an "Adverse REMIC Event"); provided, however, that the Master Servicer may allow reductions in hereunder by giving notice of its desire to terminate such agreement to the rate of interest on any Mortgage Loan so long as the amount of any such reduction does not exceed the greater of (i) ____% and (ii) __% of the total coupon on such Mortgage Loan. The Master Servicer shall not take any action or fail to take any action (whether or not authorized hereunder) as to which the Trustee has advised it in writing that it has received an Opinion of Counsel to the effect that an Adverse REMIC Event could occur with respect to such action, and the Master Servicer shall have no liability hereunder for any action taken by it in accordance with the written instructions provide appropriate notice to each such Sub-Servicer) and (v) if such Sub-Servicer is not an Affiliate of the Trustee. In additionParent, prior the Administrative Agent and the Majority Purchasers shall have consented in writing in advance to taking any action such delegation; provided, no such consent shall be required with respect to the Trust Fund that is not expressly permitted under the terms delegation of this Agreement (other than interest rate modifications referred any duties to in the provision to the second preceding sentence),the Master Servicer will consult with the Trustee or its designee [and the Certificate Insurer], in writing, outside collection agencies with respect to whether such action could cause an Adverse REMIC Event to occur. The Trustee may consult with counsel to make such written advice, and the cost of same shall be borne by the party seeking to take the action not permitted by this Agreement. At all times as may be required by the Code, the Master Servicer shall use its best efforts to ensure that substantially all of the assets of the Trust will consist of "qualified mortgages" as defined in Section 860G(a)(3) of the Code and "permitted investments" as defined in Section 860G(a)(5) of the Code. In the event any specified time period or other requirement set forth in this Agreement in respect of compliance with the REMIC Provisions becomes inconsistent with the REMIC Provisions as the same may be amended, such specified time period or other requirement shall also be deemed amended to comply with the requirements of this Section, unless such amended time period or other requirements shall be less protective of the interests of the Certificateholders and the Certificate Insurer, in which case, to the extent consistent with the REMIC Provisions, the former time period or requirement shall continue in forceDefaulted Receivables.
(d) Subject to Section 5.12, the Master Servicer is hereby authorized and empowered to execute and deliver on behalf of the Trustee and each Certificateholder, all instruments of satisfaction or cancellation, or of partial or full release, discharge and all other comparable instruments, with respect to the Mortgage Loans and with respect to the Mortgaged Properties. If reasonably required by the Master Servicer, each Certificateholder and the Trustee shall execute any powers of attorney furnished to the Trustee by the Master Servicer and other documents necessary or appropriate to enable the Master Servicer to carry out its servicing and administrative duties under this Agreement.
(e) On and after such time as the Trustee receives the resignation of, or notice of the removal of, the Master Servicer from its rights and obligations under this Agreement, and with respect to resignation pursuant to Section 5.23, after receipt by the Trustee [and the Certificate Insurer] of the Opinion of Counsel required pursuant to Section 5.23, the Trustee or its designee approved by the Certificate Insurer shall, within a period not to exceed 90 days, assume all of the rights and obligations of the Master Servicer, subject to Section 7.2 hereof. The Master Servicer shall, upon request of the Trustee but at the expense of the Master Servicer, deliver to the Trustee all documents and records relating to the Mortgage Loans and an accounting of amounts collected and held by the Master Servicer and otherwise use its best efforts to effect the orderly and efficient transfer of servicing rights and obligations to the assuming party.
(f) The Master Servicer shall deliver a list of Servicing Officers to the Trustee [and the Certificate Insurer] by the Closing Date, which list may, from time to time, be amended, modified or supplemented by the subsequent delivery to the Trustee [and the Certificate Insurer] of any superseding list of Servicing Officers.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Gray Television Inc)
